(COURT OF APPEAL)

HEIRS OF MAGARYOUS SAYEDOHM v. ANTONANYIET MAGARYOUS

AC-REV-625-1967

Principles

  Civil Procedure—Costs—In a partition suit each party bears his own costs

Generally, in a partition suit, every party bears his own costs, unless there are exceptional circumstances, e.g. unnecessary costs incurred by a frivolous defence.

Advocate: Fawzy El Tom for the applicant

Judgment

Mahdi Mohamed Ahmed J. April 4, 1970:- Respondent instituted Civil Suit No. 1566/1965 for the partition of Plot No. 1Block 7 H. W. Khartoum Town. As respondent’s share was less than the statutory minimum and the court has to proceed according to the provisions of the Civil Justice Ordinance, s. 128, the real dispute turned on the value of respondent’s share. She estimated such value at £S.4,000.000m/ms. and applicants contended that her estimation is exaggerated. The court referred the matter to the Registrar of Lands, Khartoum, who evaluated respondent’s share at £S.I,972.000m/ms. The said sum was paid to respondent on October 4, 1966 and a decree was passed on May 14, 1967 for the addition of respondent’s share to applicants. The decree also directed that applicants-defendants should bear the costs of the action amounting to £S.152.030m/ms. and that such sum shall be a charge on applicant’s share until it is paid.

The applications to the Province Judge and this court were against that part of the decree pertaining to the costs. Applicants are contesting the trial court direction on the ground that respondent put a very high value on her share and that was the cause of the dispute and the subsequent litigation, and therefore she should bear the costs. In her reply respondent maintained she was driven into litigation by applicants who failed to pay her share when she asked for it.

According to the Civil Justice Ordinance, s. 100, the award of costs in civil proceedings is in the discretion of the court. However, such a discretion is judicial and must be exercised on fixed principles. It is a general rule that costs shall follow the event unless the court for good reasons otherwise directs. Hence section 100 (2) provides that when the court directs that costs shall not follow the event, it must record its reasons for such direction.

In the case subject-matter of this application the court directed that costs shall be borne by applicants-defendants. Does this imply that costs followed the event? And this in its turn poses the question: What is the event in this particular case? As we have already stated the real dispute was as to the value; and the parties, failing to agree, came to the court to ascertain the value. In such circumstances it is not possible to place the parties as winners and losers. At any rate respondent could not be classified as a winner since she got £S.I,972.000m/ms out of the £S.4,000.000m/ms. she claimed.

Furthermore, partition suits are in a category of their own. The co owners do not enlist the help of the court to resolve a dispute in the real sense but to effect an equitable and just partition. Hence:

"it is a general rule that up to the passing of a preliminary decree in a partition suit each party will bear his own costs, unless there are exceptional circumstances such as unnecessary costs incurred by a frivolous defence,” I Mulla The Code of Civil Procedure (13th ed.,1965) p. 184.

In the present case respondent accepted the evaluation of the Registrar of Lands before the preliminary decree and applicants’ contention that the value as assessed by respondent is high could not, by any stretch of meaning, be called a frivolous defence. It is, therefore, my opinion that every party in this case should bear his own costs and the direction of the trial court that costs should be borne by the applicants be set aside

Tawfik Abdel Mageed I. May 20, I97 :—I agree. In the circum stances of this suit and the nature of its cause of action, it is only fair and just to make every party in this case to bear his own costs.