GATCO CHEMPHARAM vs. PHARMADEX (GH) LTD [1999-2000] 2 GLR 262

CASES REFERRED TO:

(1) Worbi v Asamanyuah (1955) 14 WACA 669.

(2) Donald Campbell & Co Ltd v Pollak [1927] AC 732; [1927] All ER Rep 1; 96 LJKB 1132; 137 LT 656; 43 TLR 787, HL.

(3) Crozat v Brogden [1894] 2 QB 30; 63 LJQB 325; 70 LT 522; 42 WR 353; 10 TLR 361, CA. (4) Crentsil v Crentsil [1962] 2 GLR 171, SC.

(5) Poku v Frimpong [1972] 1 GLR 230, CA.

(6) Asibey III v Ayisi [1973] 1 GLR 102, CA.

(7) Blunt v Blunt [1943] AC 517; [1943] 2 All ER 76; 112 LJP 58; 169 LT 33; 59 TLR 315; 87 SJ 220, HL.

(8) Redondo v Chaytor (1879) 4 QB 453; 48 LJQB 697; 40 LT 797; 27 WR 701, CA. (9) De St Martin v Davis & Co (1884) WN 86; Bitt Rep in Ch 53.

(10) Contract and Agency Corporation Re (1887) 57 LJ Ch 5; 4 TLR 141.

(11) Inspector-Plastico Moulds Ltd v Atico Ltd [1967] GLR 593.

(12) Erskine v Erskine [1984-86] 1 GLR 249.

(13) Re Feld’s Will Trusts; Feld v Feld 110 Law Journal, Vol CX, p2.

[p.265] of [1999-2000] 2 GLR 262 Appeal from decision of High Court, Accra ordering plaintiff company, which was incorporated and resident outside the jurisdiction, to provide security for costs in the sum of ¢180 million, which was the defendant’s counterclaim. The facts are sufficiently set out in the judgment of Brobbey JA. Peasah Boadu (with him Wiafe Siaw) for the appellants.

No representation by or for the respondents.

Wood JA. I agree that there is merit in this appeal and it must therefore succeed. We would be entitled for the reasons stated by my learned brother Brobbey JA to set the order aside. At this rehearing however, I also do not think the facts justify a grant of the order for security for costs.

Consequently, in the exercise of my discretion, I would refuse the application. Accordingly the application is dismissed.

Brobbey JA. The facts giving rise to this appeal are as follows: the appellant is a company registered under the laws of Germany. The respondent is a company registered under the laws of Ghana. Both companies deal in pharmaceutical products. The appellant supplied some pharmaceutical products to the respondent. The total value of the goods supplied was US$243,520 out of which $45,000 was paid, leaving a balance of US$198,520. That balance remained unpaid after some demands. The appellant therefore sued the respondent in the High court, claiming the balance of US$198,520. The respondent denied the claim, filed a statement of defence and counterclaimed for ¢180 million, being loss of profits or earnings.

The appellant applied for summary judgment. The trial court refused that. The respondent then applied for security or costs. Counsel for both parties canvassed arguments before the trial judge. The trial court finally ruled that the appellant was liable to give security for costs and in the sum of ¢180 million which was the same as the amount claimed in the counterclaim. It was against that ruling that the appellant appealed to this court, originally on the sole ground that the ruling was wrong in law. Later, three more grounds were filed and these were that:

“(b) The order for security for cost made by the trial judge amounted to wrongful exercise of discretion in that the trial judge failed to take into consideration the fact that on the basis of the affidavit evidence disclosed by the

[p.266] of [1999-2000] 2 GLR 262 appellant’s motion for summary judgment, the appellant had demonstrated that it would succeed in its claim against the defendant-respondent and that it was not necessary for it to furnish any security for costs.

(c) The trial judge wrongfully exercised his discretion by making the order for security for costs because he took into account the defendant-respondent’s counterclaim since the counterclaim was irrelevant in the consideration of the defendant-respondent’s application for security for cost.

(d) Since the defendant-respondent’s counterclaim was a cross-action and that the plaintiff-appellant became a defendant in the cross-action, the order for security for costs in respect of the counterclaim is wrong in law as the same is not supported by any rule of court.”

At the High Court, counsel for the respondent did not disclose the authority on which he relied to file the motion for security for costs. When arguing the motion there, he referred to Order 50 of the High Court (Civil Procedure) Rules, 1954 (LN140A). That Order 50 does not deal with security for costs at all. At the tail end of his argument at the trial court, he alluded to the fact that the appellant had no assets in Ghana and thus gave the impression that he was relying on Order 65, r 5 of LN 140A in support of his case, even though he did not expressly state that. Counsel for the appellant however relied on Order 65 r 5 of LN 140A. In his ruling the trial judge did not refer to any Order in the High Court rules. From the tenor of his judgment however, it was apparent that the ruling was based on Order 65, r 5 of LN 140A. That rule provides that: “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.” In the instant case, there is no doubt that the appellant was resident out of the jurisdiction of the courts of Ghana. The application for security for costs, on its face, would seem to have been in order. There are however well-settled principles which govern the award of such costs.

Generally, the award of cost in proceedings at the High Court is said to be in the discretion of the trial judge. This is clearly supported by the provisions of Order 65, r 1 of LN 140A which state that:

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“1. Subject to the provisions of these Rules, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or Judge . . .”

By the order awarding security for costs, the trial judge exercised his discretion. The law required that the discretion should be exercised judicially, as was held in Worbi v Asamanyuah (1955) 14 WACA 669 which cited with approval the English case of Donald Campbell & Co Ltd v Pollak [1927] AC 732. The question which is raised by this is whether the trial judge in his ruling exercised his discretion judicially when he ordered the appellant to provide security for costs.

On the face of the ruling, there is no doubt that there were two bases or reasons for the decision of the trial judge. The first reason was that the respondent had filed a counterclaim for ¢180 million and that should it win the counterclaim, there should be security against which it could fall for the enforcement of the eventual judgment that may be given in its favour. This is how he ended his ruling: “It is the wish of every party that he will have the fruits of the success of his action in court. In the present action, the defendant has counterclaimed against the plaintiff which is a foreign company. In fact the plaintiff’s address is given on the writ of summons as: SCHAARTOR 1-D 20459, D, GERMANY. It would therefore appear that it has no registered office at all in this country. Thus, whereas if its claim against the defendant succeeds it can easily go into execution (since the defendant company is in Ghana) it would be quite difficult for the defendant to execute whatever judgment it may obtain. To ensure that such a judgment on defendant’s counterclaim is not rendered nugatory, I hereby grant the application and order that the plaintiff company should provide security to the costs of ¢180 million.”

The learned trial judge mistook application for security for costs to mean application for security against judgment which may be given at the end of the trial. That was wrong because throughout the whole of Order 65 of LN 140A, there is no reference to the writ of summons, substantive suit, counterclaim or any such-like expression for any one to misapprehend the implication, import or

[p.268] of [1999-2000] 2 GLR 262 the meaning of the word “cost” which is all that Order 65 of LN 140A is about. The very heading of the entire Order 65 of LN 140A is expressly described as “COSTS.” The marginal note to rule 5 on which the ruling was based also contains this phrase: “Security for costs by plaintiff temporarily within jurisdiction.”

In the terms of Order 65 of LN 140A, the only matters for the trial judge’s consideration were the costs which the defendant would possibly incur in having to litigate over his counterclaim. He should not have considered the judgment that would be given as the final outcome of the counterclaim because that kind of judgment was in no way contemplated by the provisions in Order 65 of LN 140A.

The second basis or reason for the ruling of the trial judge concerned the amount of ¢180 million stated in the counterclaim. He allowed that amount to weigh too heavily on his mind when considering the quantum of the security for costs and that was why he awarded the same overly high figure to be provided as security. It is inconceivable that even if the respondent were to win the counterclaim, the cost involved in prosecuting that claim would be the same as the value of the counterclaim itself. That would be preposterous. However, by awarding as security for costs the same figure as in the counterclaim, that was the implication of the order contained in his ruling. The fact that he used the figure in the counterclaim as the basis for the security which he ordered emphasized that he was largely influenced by the subject-matter of the counterclaim.

In his arguments in his statement of case, counsel for the appellant considered in detail the merits of the substantive subject-matter which was before the High Court. That, with respect, is not the correct approach. On this issue, counsel for the respondent was right when he submitted in his written statement of case that the law does not require the trial judge in granting security for costs to weigh or delve into the merits of the defendant’s case or that of the plaintiff. And he had the authorities in support of his viewpoint. To cite only one instance, in Crozat v Brogden [1894] 2 QB 30, CA, a case in which the trial judge ordered security for costs to be increased on account of his own view of the merits of the plaintiff’s case, the English Court of Appeal, per Davey LJ, held at 36 that:

[p.269] of [1999-2000] 2 GLR 262

“. . . the Court cannot, upon an application for security for costs to be given by a plaintiff, go into the merits of the action. It appears to me that it would be highly inconvenient to do so, and as the reason for giving security for costs is not dependent on the merits of the action, I do not see why the merits of the action should be looked into at all.”

That decision was based on the provisions on costs in the English rules quite similar to the provisions in Order 65, r 5 of (LN 140A). By considering the counterclaim and the amount stated in the counterclaim in awarding the security for costs, the trial judge took into account matters which were not only irrelevant but also illegitimate.

For these reasons, ground (b) of the grounds of appeal, which attacked the failure of the trial judge to consider the merits of the appellant’s case, is legally unsustainable and is dismissed. For the same reasons stated above, grounds (c) and (d) of the grounds of appeal which seemed to impugn the ruling of the trial judged in so far that it took into consideration the merits of the counterclaim, succeed, although for reasons stated herein which are quite different from those contained in the statement of case of the appellant.

This is an appeal against the exercise of discretion by the court. The well-established rule is that: “As to appeals from the exercise of the court’s discretion, it is a rule of law deep rooted and well established that the Court of Appeal will not interfere with the exercise of the court’s discretion save in exceptional circumstances.”

See Crentsil v Crentsil [1962] 2 GLR 171 at 175, SC . This is however not an inflexible rule. In fact in Poku v Frimpong [1972] 1 GLR 230 at 241, CA it was also held that:

“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 . . . this court. . . 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 applicant to show that the discretion had been wrongly exercised . . .”

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The principle was, applied in Asibey III v Ayisi [1973] 1 GLR 102 at 123, CA. Even more emphatic was the way the principle was put in the House of Lords case of Blunt v Blunt [1943] AC 517 at 518, HL which held that:

“An appeal against the exercise of the court’s discretion may succeed on the ground that the discretion was exercised on wrong or inadequate materials if it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account, but the appeal is not from the discretion of the court to the discretion of the appellate tribunal.”

In the instant appeal against the exercise of discretion by the trial court, the appellant discharged the onus on him by successfully demonstrating that the ruling was based not only on a misapprehension of the word “Costs” within the meaning of Order 65, but also on considerations of factors which were irrelevant and illegitimate, as has been shown above.

For these reasons, the order awarding ¢180 million as security for costs was incompetent and cannot stand. It should be set aside. In view of the stand taken in this opinion that the order for costs was incompetent and should be set aside, the case of Redondo v Chaytor (1879) 4 QB 453, CA which counsel for the respondent relied upon is irrelevant because that case deals with the situation where the court had no option but to order security for costs. The foregoing dispose of the first ground of appeal, namely that the ruling was wrong in law.

The fact still stands that the appellant company is resident outside the jurisdiction of the courts of Ghana. It therefore has to be decided whether or not it should be made to provide security for costs. The general rule is that a plaintiff resident outside the jurisdiction of the court has to provide security for costs. There are however a number of exceptions to this rule, one of which is that at common law, security for costs is not ordered to be provided where the party to provide security has its money in the hands of the party applying for the security. This exception was endorsed in Crozat v Brogden (supra). Another exception was enunciated in De St Martin v Davis & Co (1884) WN 86 where it was held that upon an admission of the debt owed to the plaintiff by the defendant, the trial judge exercised his discretion properly when

[p.271] of [1999-2000] 2 GLR 262 he refused an application for security for costs against that plaintiff. That exception too was applied in Re Contract and Agency Corporation (1887) 57 LJ Ch 5 at 6. In my opinion, these exceptions make much sense and may be applied in our local jurisprudence. If nothing at all, the exceptions acknowledge the reality that in such circumstances, the applicant may offset the money in his hands against cost to be paid by the one who owns the money. If that were to happen, then there would be no need for any other security for costs.

On the facts of the instant case, the appellant claimed that it had supplied some pharmaceutical products to the respondent. Nowhere in the record of appeal has that fact been denied by the respondent. The appellant gave the value of the goods supplied as US$243,520 out of which US $45,000 was paid by the respondent, leaving a balance of US $198,520. That balance and those figures have also not been denied by the respondent throughout the proceedings up till this stage, even though he denies liability for the sum claimed. It is significant to point out that the respondent’s case is not that all the goods supplied to it by the appellant were bad or had been rejected. In the statement of defence on which the counterclaim was based, especially in paragraphs (4) and (5), the respondent referred to “part of the consignment of cloxacillin odium supplied” and “part of consignment of pharmaceutical products.” The use of the word “part” implies that “some” or “the other party” are still with the respondent.

To my mind, these facts demonstrate in no uncertain terms that the respondent has in its possession either the property of the appellant in the form of the goods supplied or money of the appellant in the form of the value of the goods or part of the goods and their value. Either the goods or their value could constitute whatever security for costs which the respondent desires. It will not be a proper exercise of jurisdiction to allow the respondent to keep the goods or their value or even part of them and at the same time compel the appellant to provide security for costs. On the basis of the foregoing arguments it becomes apparent that security for costs should not have been ordered against the appellant. The trial judge erred in ordering security for costs to be provided by the appellant.

In ground (e) of the grounds of appeal, the complaint was that the trial judge failed to consider the submissions and authorities of counsel. In his address before the trial court, counsel cited only

[p.272] of [1999-2000] 2 GLR 262 two authorities. One was Order 65, r 5 of LN 140A. On this order, I have already explained at the beginning of this opinion that the ruling of the trial judge was based on Order 65 of LN 140A even if the trial judge did not refer expressly to it. It was not only counsel for the appellant who referred to order 65 of LN 140A. Counsel for the respondent who initially did not refer to any rule in his motion for security for costs also relied on Order 65 of LN 140A in his statement of case. In any case, the trial judge could not have disposed of the case in the manner in which he did without considering Order 65 of LN 140A, especially rule 5.

The second authority of counsel for the appellant was Inspector-Plastico Moulds Ltd v Atico Ltd [1967] GLR 593. That was a High Court case and was therefore not binding on the trial judge. Secondly, the ratio decidendi in that case indicated that it was an authority which touched on the merits of the case before the trial judge. For the reasons already stated, on a motion which was only for security against costs, it would have been pointless considering that authority which dealt with the merits of the substantive suit.

It may be that it would have been desirable if the trial judge had considered his two authorities and expressly stated his stand on them. Be that as it was, the trial judge did consider the arguments put forward by counsel in his address. The fact that he did not say so in so many words or mention counsel’s name in the consideration of the points raised before him did not mean that he did consider counsel’s arguments. That may be the judge’s own style of writing his judgments, a style which he is entitled to adopt and no one can begrudge that. In any case, having regard to the uselessness of his own case law authority to the issues at stake and the facts that the trial judge clearly took into account the provisions of Order 65 of LN 140A as well as arguments of counsel in his address, the criticism leveled against the trial judge is not merited. I would dismiss that ground of appeal.

In the end, grounds (b) and (e) of the grounds of appeal fail and I would dismiss them. Grounds (a), (c) and (d) succeed and are allowed. The trial judge exercised his discretion wrongly when he ordered the appellant to provide security for costs. That order should be set a side and the case dispatched to the High Court for continuation.

[p.273] of [1999-2000] 2 GLR 262 Twumasi JA. The appellant the plaintiff, in the court below brought an action on 29 October 1996 claiming the following reliefs:

“(a) Payment of the sum of US198,520 or its cedi equivalent at the current forex bureau exchange rate, being balance due and owing on account of pharmaceutical products supplied to the defendant.

(b) Interest on the said amount or its cedi equivalent from May 1998 to the date of final payment.

In its statement of defence filed on 11 November 1996, the respondent traversed the averments in the statement of claim and counterclaimed for an amount of ¢180 million being loss of profits or earnings occasioned by the appellant’s wrongful interference in the business of the supply of goods to the appellant and other reliefs in the nature of a claim in tort as distinct from the contractual transaction between the parties. On 20 April 1996 the respondent filed a motion praying for an order requiring the appellant to provide security for costs. In the supporting affidavit the respondent averred the following:

“(2) The plaintiff is a company incorporated and resident outside the jurisdiction. Their claim against the defendant would occasion legal and other costs. From the defence filed it is clear that several triable issues arise.

(3) The defendant have made counterclaim against the plaintiff for general and special damages.

(4) I verily believe that the plaintiff has neither an office nor assets in the jurisdiction and in the event that the plaintiff is not successful in maintaining its claim, the defendant will have nothing to fall on to recover judgment debt in its favour, legal costs and or expenses which are to date quite considerable.”

Counsel for the appellant in addition to an affidavit in opposition to this motion for security for costs, relied on an affidavit in support of an earlier motion for summary judgment against the defendant on the principal claim. He took the position that the appellant had a strong case against the respondent. In the appellant’s affidavit, no specific denial was made to the averment that the plaintiff was resident outside the jurisdiction. They also

[p.274] of [1999-2000] 2 GLR 262 failed to lay claim to any assets within the jurisdiction. The learned trial judge found that the appellant had no other address than a foreign one which was given as “SCHAARTOR 1 – D 20459 GERMANY.” In the result the trial judge made a short ruling as follows:

“It would therefore appear that it (the plaintiff) has no registered office at all in this country. Thus whereas if its claim against the defendant succeeds it can easily go into execution (since the defendant company is in Ghana) it would be quite difficult for the defendant to execute whatever judgment it may obtain. To ensure that such a judgment on defendant’s counterclaim is not rendered nugatory, I hereby grant the application and order that plaintiff company should provide security to costs in the sum of ¢180,000,000.

Against this ruling, the appellant appealed on a number of grounds. The first was that the ruling was wrong because it had no basis in law in that it was based on the round sum of ¢180,000,000 counterclaimed by the respondent. Counsel submitted that a reasonable cost to be incurred by the respondent assuming the plaintiff lost his case, would not amount to ¢180,000,000. This ground raises the whole question of the parameters for the award of costs.

Order 65, r 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) provides that:

“1. Subject to the provision of these Rules, the costs of and incident to all proceedings in the High Court, including the administration of estates and trusts, shall be in the discretion of the Court . . .”

In the Annual Practice, (1964 ed), (Vol. 1), at p 510 it is stated that:

“The amount of security awarded is in the discretion of the Court which will fix such sum as it thinks just, having regard to all the circumstances of the case. It is not the practice to order security on a full indemnity basis.”

Our rules do not offer such a practical guideline and we should enjoy the benefit offered by the English practice. Security for costs should bear juridical affinity to costs in the cause. In this regard I can do no more than endorse some of the guiding principles on the award of costs in the case of Erskine v Erskine [1984-86] 1

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GLR 249 at 254 where the court enumerated these guidelines on the award of costs:

“(1) the fact that a party has unduly delayed the trial by causing unnecessary adjournments: Guardian Assurance Co Ltd v Khayat Trading Store [1972] 2 GLR 48, CA;

(2) costs should normally bear a relationship to the trial and its incidents and not to the measure of damages awarded. Since costs are in the discretion of the court and the law requires that such discretion should be exercised reasonably, it is wrong for a court to award costs on the basis of a so-called ten per cent of the damages awarded: Guardian Assurance Co Ltd v Khayat Trading Store (supra);

(3) the fact that the point which forms the main basis of the judgment or decision was raised not by counsel but by the court: Asamoah v Koufu (1958) 3 WALR 315;

(4) costs must neither be excessive nor ridiculously low but must be reasonable having regard to the circumstances of the case, eg the fact that the issues were simple and the trial took no considerable time and energy in its preparation and disposal: Bank of Ghana v Nyarko [1973] 2 GLR 265, CA and Sasraku v David [1959] GLR 7, CA;

(5) a party can, in the discretion of the court exercised judicially, that is to say by giving sufficient and good reasons, be deprived of his costs in exceptional cases, otherwise a successful party is always entitled to costs: London Welsh Estates Ltd v Philip (1931) 100 LJKB 449 for instance if the court is satisfied that the conduct of the party has involved the defeated party unnecessarily in the expense of litigation;

(6) insolvency or impecuniosity of a defeated plaintiff is not a sufficient ground upon which a court can deprive a successful defendant of his costs, nor is the insolvency or impecuniosity of a defeated defendant a good ground for depriving a successful plaintiff of his costs: Amalgamated Press Ltd v Independent Press Ltd [1960] GLR 113; and (7) where each party is only partially successful, eg where a plaintiff is successful on his claim and the defendant is

[p.276] of [1999-2000] 2 GLR 262 also successful on his counterclaim, costs are apportioned proportionately in terms of the issues and incidents in each action or where appropriate each party bears his own costs: Gariba v Ibrahimah (1951) 13 WACA 171.

In practice costs are awarded to victorious parties not for the fact of their victory in the litigation but also the industry in the preparation and conduct of the case, the time and energy consumed and the expenses involved. The case law amply support this. It is therefore wrong for a trial judge, as it happened in the instant case, to award costs in terms of the claim made by the party applying for security of costs because that is tantamount, to equating judgment debt with costs in an action. In other words it is wrong for a trial judge to award an amount as security for costs as though it were a full indemnity. For this reason the first of the grounds of appeal succeeds.

By his ground (B) counsel for the appellant submitted that it was wrong for the judge to award to the respondent security for costs when the appellant had demonstrated by his affidavit and pleadings that it would succeed in its action. It must be emphasised that the respondent applied for security for costs against the appellant because he was found to be resident out of the jurisdiction, a condition prescribed by Order 65, r 5 of LN 140A. The rest of the grounds of appeal namely (c), (d) and (e) all centred on the criticism that the trial judge erred in awarding the costs in respect of the counterclaim because, counsel contended: (a) the counterclaim was irrelevant in questions of security for costs (b) because the award was not supported by any rules of court, as the appellant in effect became a defendant to the counterclaim which in essence was a cross-action. These grounds obviously dawned on the appellant’s counsel largely because of the fact so palpable in the ruling of the learned trial judge that he pitched the quantum of costs at ¢180 million which was the respondent’s counterclaim. The impression created was clear that the learned trial judge misconstrued the whole concept of award of security for costs in the instant case where a counterclaim featured.

The practice which permits a defendant to apply for security for costs against a plaintiff resident outside the jurisdiction equally operates to require a counterclaimant resident outside the jurisdiction to provide security for costs to the plaintiff subject,

[p.277] of [1999-2000] 2 GLR 262 however, to the following conditions culled from the Annual Practice of England (1964 ed) (Vol 1), p 510:

“Where a claim and counterclaim arise out of different matters, so that the counterclaim is really in the nature of a cross-action, the defendant if, resident out of the jurisdiction, may be ordered to give security (Sykes v Sacerdoti (1885) 15 QBD 423 Lake v Haseltine (1885) 55 LJ QB 205; The Julia Fisher (1877) 2 PD 115; The Newbattle, where he was a foreigner sovereign);(1885) 10 PD 33, but where the counterclaim arises out of the same matter and is in fact the defence to the action, the Court will ordinarchy refuse to order the defendant, resident out of the jurisdiction, to give security for costs (Neck v Taylor (1893) 1 QB 560). ..But each case depends upon its own merits, and security for costs of a cross-action may be ordered where the claims therein set up are quite independent of the matters in question in the original action (New Fenix, etc. Co v General Accident etc. Corp [1911] 2KB 619)”

In the instant case, however, the germane issue is not whether security for costs was established but whether the amount of costs awarded was reasonable, having regard to the facts before the learned trial judge. It seems to me to be a proper guide in the assessment of costs in the nature of security for a court or judge to direct his primary attention to the projected time the trial may take, the nature of documents filed and the prevailing court charges: See Re Feld’s Will Trusts, Feld v Feld, Law Journal; Vol CX,p2 ; witnesses likely to be called and the quantum of fees for witnesses under rules of court with regard to mileage of their places of abode, the simplicity or complexity of the questions of law or fact or mixed law and fact, mode of execution of judgments in terms of monetary expenditure and, above all, the standard approved fees for legal practitioners.

It is quite clear that the learned trial judge did not advert, his mind to any of these factors. He therefore erred. I would accordingly allow the appeal.

Appeal allowed.

SA