AGBEMABIESE vs. DZISAM AND OTHERS [1973] 1 GLR 291

CASES REFERRED TO

(1) Cheney v. Spooner (1929) 41 C.L.R. 532.

(2) Dartford Brewery Co., Ltd. v. Mosely [1906] 1 K.B. 462; 75 L.J.K.B. 279; 94 L.T. 263; 54 W.R.

333; 22 T.L.R. 304; 50 S.J. 270, C.A.

(3) Howell v. Bowers (1835) 2 Cr.M. & R. 621; 5 L.J.Ex. 10; 150 E.R. 264.

(4) Salt v. Cooper (1881) 16 Ch.D. 544; 50 L.J.Ch. 529; 43 L.T. 682; 29 W.R. 553, C.A.

(5) Renner v. Thensu (1930) 1 W.A.C.A. 77.

(6) In re Clagett’s Estate; Fordham v. Clagett (1882) 20 Ch.D. 637, C.A.

(7) Harrison v. Leutner (1881) 16 Ch.D. 559; 50 L.J.Ch. 264; 44 L.T. 331, 29 W.R. 393.

(8) Wootton v. Central Land Board [1957] 1 W.L.R. 424; 121 J.P. 137; 101 S.J. 188; [1957] 1 All E.R.

441; 8 P. & C.R. 121; 55 L.G.R. 84, C.A.

NATURE OF PROCEEDINGS

APPEAL from the ruling of a district court magistrate reviewing his award of costs against the appellant for the discontinuance of an action. The facts are sufficiently set out in the judgment.

COUNSEL

Gikunoo for Nutsugah for the appellant.

Deegbe for the respondents.

JUDGMENT OF ATA-BEDU J.

The facts of the circumstances leading to this appeal as presented by counsel for the appellant are that the appellant was a successful party in a suit at the Native Court B Anloga on 14 May 1953. Later the appellant applied to the District Court Grade II for a writ of possession in satisfaction of the judgment. On 3 November 1970 the appellant who was then the applicant withdrew his application. On the day the application was withdrawn the respondents who were not in court were not awarded costs. On 24 September 1971, the respondents brought an ex parte application for costs. Upon the hearing of the application, the court granted the respondents then applicants (hereinafter referred to as the respondents) costs of ¢200.00 under Order 39, r. 1 of the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II for the withdrawal of the application. Subsequently the appellant herein brought an application made under Order 42, r. 1 of Schedule II to Cap. 4 for a review of the order. The ruling was delivered on 20 April 1972 and appears at pp. 12-13 of the record of proceedings. It is from this ruling that the appeal has been brought to this court on the following grounds:

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(a) The trial magistrate erred in law in not setting aside his order of 24 September 1971.

(b) the costs of 100 cedis awarded to the defendants on 20 April 1972, are harsh and excessive.

In arguing the first ground counsel for the appellant says the sole point to consider is whether the respondents could under Order 39, r. 1 of Cap. 4, Sched. II bring an ex parte application for costs. Counsel submits that the respondents’ initial ex parte application of 24 September 1971 for costs was misconceived and for that matter the magistrate was wrong in hearing the application and awarding the respondents ¢200.00 costs. According to counsel, there was no suit pending before the court as to entitle the respondents to bring the application under Order 39, r. 1. All that was pending before the magistrate was the application for the writ of possession which was an ancillary proceeding but not the original suit. Counsel refers to Vanderpuije v. Akwei [1971] 1 G.L.R. 242 on the definition of suit.

Counsel for the respondents in reply, contends that the interpretation of the circumstances in which Order 39, r. 1 is applied is a narrow interpretation and it does not accord with common sense and practice. Order 39, r. 1. he says, embraces “suits,” “claim” and “matter”; he concedes that what happened at the district court was not a suit but it was at least a matter. He says the use of the word “suit” at page 2 of the record was a misuse of that word by a lay magistrate. With due respect to both counsel, I cannot understand why the use of the word “suit” in the order of the magistrate, lay as he is, should be a bone of contention when even they, so learned as they are in law, had fallen into the alleged error of misusing the same word in their arguments heard respectively on 24 September 1971 in support of the ex parte application for costs and on 14 January 1972 in support of the application for a review of the order for the costs awarded. According to him, the word “matter” cannot be limited to the proceedings referred to by the learned judge in the light of the definition at section 2 of Cap. 4 as follows:

‘Matter’ includes every proceeding in the Court not in a cause.” In the same section, “cause” is defined as including “any action, suit or other original proceeding between a plaintiff and a defendant, and any criminal proceeding.” “Suit” is also defined as including “action, and shall mean a civil proceeding commenced by writ of summons or in such other manner as may be prescribed by Rules of Court, and shall not include a criminal proceeding.”

The question raised is mainly a procedural point and before I can deal with the point as to the propriety or otherwise of the respondents’ application, I am compelled to deal with the circumstances under which that point arises. The fact of the existence of the judgment for title to and the order for possession of the lands in dispute in the two different cases in favour of the appellant at the Native Court B Anloga on 14 May 1953 and at the Anlo Local Magistrate Court at Anloga on 28 June 1962 is not controverted. These judgments and orders not having

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been satisfied, the question as to the mode of enforcement was a matter for the appellant, as the then judgment creditor to decide.

Under Order 44, r. 1 of Schedule II to the Courts Ordinance, Cap. 4 (1951 Rev.), which now governs the practice and procedure in the district courts, the procedure is purely administrative. The rule provides: “If the decree be for land or other immovable property, the execution creditor shall be put in possession thereof, if necessary, by the Sheriff or other officer under a writ of possession.” And under rule 18 of the same Order the application for the writ to issue may be made to the registrar. This order comes under the heading “Part 5⎯Proceedings to enforce Decree and Orders.” Emerging from this situation is the question whether the application for the writ of possession is a “proceeding,” in the sense that it is a step in the action as required by the rules.

In the case of Cheney v. Spooner (1929) 41 C.L.R. 532, Isaacs and Gavan JJ. at pp 536-537, were of the opinion that a, “‘proceeding’ used broadly as it is used in section 16 of the Federal Service and Execution of Process Act (Australia), is merely some method permitted by law for moving a court or judicial officer to some authorised act, or some act of the court or judicial Officer.”

In the case of Dartford Brewery Co., Ltd. v. Mosely [1906] 1 K.B. 462, C.A. appeared the issue whether or not the writ of possession was a proceeding in the Supreme Court. On behalf of the defendant, it was contended that the issue of a writ of possession was not a proceeding in the Supreme Court but the execution of such a writ was merely “a ministerial matter.” But on behalf of the plaintiff it was contended that the application for a writ of possession was made in an action as was so headed. Vaughan Williams L.J. held at p. 465 that in his opinion, it was such a proceeding.

In the present case if the appellant had applied to the sheriff the application for the execution would have been administrative. But he applied to the District Court Grade II, Keta-Anloga by notice of motion dated 9 September 1970 in the two cases entitled thereon in the first of which the appellant is designated as the plaintiff and in the second as the defendant. The motion paper was headed as follows:

“Motion of Moses Kwashie Agbemabiese the plaintiff and defendant in the above-named two listed cases respectively for writ of possession to issue for enforcement of the judgments therein and ejectment of the persons concerned under Supreme Court Rules, Order 47, r. 1 (1) and (2).”

In 1970 the rules of practice and procedure in force for the district courts were those in Schedule II to the Courts Ordinance, Cap. 4 (1951 Rev.), and Order 47 thereof has no rule 1 (1) and (2) although the said Order 47 thereof also relates to enforcement of orders. But the Order 47, r. 1 (1) and (2) relied on by the appellant was that which applied to writs of possession in the Supreme Court (Civil

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Procedure) Rules, 1954 (L.N. 140A), in use in the High Court and the circuit courts. It is, therefore, clear that ab initio the appellant proceeded under the wrong procedural rule. However, it is not known whether the withdrawal of the application for the issue of the writ of possession was due to either coming to the court under the wrong procedural rule or coming to the court instead of applying to the sheriff.

From the foregoing, I am convinced that the application for the writ of possession was a proceeding in court in the action as headed.

I shall now deal with the submission of counsel for the appellant that there was no suit pending before the court to entitle the respondents to bring the application for costs under order 39, r. 1. Since the term suit” includes action, and a “cause” includes any action or suit and since the application for the writ of possession is held to be a proceeding in the action, the question to consider is whether there was a suit or action or cause pending at the time the application was filed in court and served on the respondents. A cause or suit or action is deemed to be pending as long as something remains to be done and which has not been done even after judgment. There are authorities in support: In Howell v. Bowers (1835) 2 Cr. M. & R. 621 at p. 623 Lord Abinger C.B. had this to say: “It is true there has been a judgment, but there has been no entry of satisfaction on the roll; I think, therefore, this is still a suit pending.” Parke B. also at p. 624 said, “all unsatisfied judgments are pending suits.” In the case of Salt v. Cooper (1881) 16 Ch.D. 544, C.A. in which a motion was made for the appointment of a receiver after final judgment, it was contended that the appointment for a receiver was irregular, for a receiver could not be appointed after final judgment. Jessel M.R. at p. 551 also had this to say: “A cause is still pending even though there has been final judgment given, and a Court has very large powers in dealing with a judgment until it is fully satisfied.” In the case of Awoonor Renner v. Thensu (1930) 1 W.A.C.A. 77 at p. 78 Hall J. applied the words of Jessel M.R. in In re Clagett’s Estate; Fordham v. Clagett (1882) 20 Ch.D. 637 at p. 653, C.A. where he said, “A cause is said to be pending in a Court of Justice when any proceedings can be taken in it . . . ‘Pending’ does not mean that it has not been tried. It may have been tried years ago.”

In the light of the foregoing legal authorities, I find it difficult to agree with the submission of counsel for the appellant that there was no suit pending. If on the other hand, it is contention that there was no suit pending at the time the respondent applied for costs under Order 39, r. 1 because of the withdrawal of the application for the writ of possession, then I would say that that contention also cannot be sustained because it should be quite clear to counsel for the appellant that his application which was discontinued was in respect of actions or suits as headed which, in the light of the authorities above, were pending and all that followed would be in connection with those suits.

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The appellant moved the District Court Grade II, Keta, for a review of the order dated 24 September 1971 awarding costs of ¢200.00 on the motion ex parte. In opening his argument before the magistrate on the hearing of the application for the review this is what counsel for the appellant said:

“This is an application for an order to review an ex parte order made by this honourable court on the 24 September 1971, in respect of costs awarded to the defendants in this suit.”

(The emphasis is mine.) Having made such a reference to “the suit” I find no reason why in the course of his argument he should impugn the respondents’ application by saying: “The defendants’ application was brought under Order 39, r. 1 of Cap. 4. I submit that there was no suit filed by the plaintiff in this honourable court which the plaintiff withdrew.”

I have no doubt that the notice of discontinuance was a step taken under Order 39, r. 1 in the context of which the words “the matter so discontinued” are clearly referable or relative to no other antecedent words than the words “desires to discontinue any suit against all . . .” It would seem that counsel for the respondents had no alternative but have recourse to that same provision under which they are entitled to apply ex parte for costs occasioned by the discontinuance and in so doing I find it difficult to accept the contention that it was irregular. The appellant, having irregularly brought the respondents to court, cannot complain that the mode by which the respondents applied for costs was irregular and that they must therefore, be deprived of their costs. In the case of Harrison v. Leutner (1881) 16 Ch.D. 559 a case similar to the instant one as far as relates to costs occasioned by a notice of abandonment of motion or discontinuance, the court directed the plaintiff to pay the defendants taxed costs. The court has an absolute and unfettered discretion to award or not to award costs but it is enjoined to exercise this discretion, just as any other discretion, judicially. However, it is clear under Order 27 of Schedule II to Cap. 4 that where an order is made on a motion ex parte any person affected thereby may within the time specified therein apply to the court by motion to vary or discharge it. The court may vary or discharge it or may refuse to vary or discharge it.

In dealing with the first ground of appeal that the magistrate erred in law in not setting aside his order of 24 September 1971, it is necessary to refer to what counsel for the appellant said at the hearing of the application for the review, in view of the point taken in his argument before me that the word “reverse” in Order 42, r. 1 means undoing what he had done by setting it aside. This is what he said:

“In any event it is my humble submission that the amount of N¢200.00 awarded as costs to the defendants was excessive and oppressive for the simple fact as admitted by the defendants themselves that they attended court only four times and were represented

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by counsel on two occasions only . . . I move in terms of my motion paper and the supporting affidavit and humbly pray that your worship may review the order for costs made on 24 September 1971.”

From the foregoing submission it is clear that the appellant’s prayer was not to ask for a reversal of the order by setting it aside on the ground that the procedure was irregular but for a variation on the ground that it was excessive and that is what the magistrate considered and whittled down the costs of N¢200.00 to N¢100.00. The applicants having not applied or prayed for an order to set aside the ex parte order, they cannot now be heard on appeal to say that the magistrate erred in law in not setting aside that order. For this reason the first ground of appeal falls through.

Adverting now to the second and the last ground of appeal that the costs of ¢100.00 cedis awarded to the respondents on 20 April 1972 are harsh and excessive, I need not remind counsel for the appellant that costs of and incidental to all proceedings are in the discretion of the court with full powers to determine by whom and to what extent such costs are to be paid. This provision applies to the application for the writ of possession and all that followed in connection therewith: see Dartford Brewery Co., Ltd. v. Mosely (supra). The principle is that where a party has been going to court for the hearing of an application and the application has been withdrawn or discontinued he is entitled to recover his cost of going to the court: see Wootton v. Central Land Board [1957] 1 All E.R. 441, C.A.

In those proceedings before the magistrate, it cannot be disputed that the respondents incurred expenses in obtaining the services of counsel and for transport for themselves on four occasions and on two occasions for their counsel. But it will be unjust to mulct the applicant in costs for the transport for counsel who is entitled to cost for his day’s appearance or attendance in court. Moreover it does not appear that there was much material before the magistrate to warrant the ¢100.00 costs at that court. In the circumstance, I am inclined to and do set aside the order for costs of ¢100.00 and substitute therefor costs of ¢30.00 inclusive of counsel’s. Subject to this variation as to costs, the appeal is dismissed.

DECISION

Appeal dismissed.

S. O.