The award of costs in any proceedings in the High Court is in the discretion of the court or judge, and where this is done judicially, its exercise will not be interfered with by an appellate court. In Bank of West Africa Ltd. v. Darko, Court of Appeal, 4 May 1970, unreported; digested in (1970) C.C. 74, this court held that it will only review the discretion, if it is exercised on material that is illegitimate, or violates some principle of substantive right. The onus is on the appellant to show that the discretion had been wrongly exercised, and he has failed to discharge this onus.
Costs where an appeal succeeds on a point taken by the court
Since the appeal of the first defendant has succeeded on a point taken by the court itself, I would order that the first plaintiff and the first defendant each pay his own costs both in this court and in the court below.
The grounds on which a court in a civil case can deprive a successful litigant of his costs are well-settled. In Donald Campbell & Co., Ltd. v. Pollack [1927] A.C. 732 at p. 811, the House of Lords approved the dictum of Lord Sterndale M.R. in Ritter v. Godfrey [1920] 2 K.B. 47 at pp. 52-53, C.A., as follows: “there is such a settled practice of the Courts that in the absence of special circumstances a successful litigant should receive his costs, that it is necessary to show some ground for exercising a discretion by refusing an order which would give them to him. The discretion must be judicially exercised, and therefore there must be some grounds for its exercise, for a discretion exercised on no grounds cannot be judicial.” I cannot discover any special circumstances in this case why the second defendant should be deprived of his costs, and as I have said earlier, the learned judge gave no reason for the exercise of his discretion, though this appears to have been inadvertent. In the circumstances, I would allow the appeal of the second defendant against the failure of the learned circuit judge to award him costs against the plaintiffs.
