(COURT OF APPEAL)

PHOENIX ASSURANCE CO. v. HASSAN MOUSA

AC-REV-33-1959-

 Principles

·  Civil Procedure—Costs—Abandonment of original suit and institution of new suit— Costs must be paid on original suit by party abandoning

Where a plaintiff, on the advice of the court, abandons his original Suit and commences a new one on substantially the same facts against the same defendant, he must pay the costs on the abandoned suit; they cannot be held over pending the result of the new suit.

Judgment

M. I. El Nur J. February 28, 1959 :—On June13,1956    respondent instituted PC-CS-39-1956 (Wad Medani) against applicants, alleging as follows:

(a) His car, which was covered by a comprehensive insurance policy for the period January 10, 1955 to December 31, 1955, had been completely damaged as a result of an accident.

(b) In compliance with article 8 of the insurance policy, he (respondent) and applicants agreed on an arbitrator, who assessed the damage to the car at £S.I,250

(c) Applicants having failed to settle same, respondent claimed its recovery.

On March 13 1957, applicants while admitting the insurance, denied the fact of arbitration and contended that the damage caused to respondent’s car was not worth more than £S.400.

Issues were therefore framed by the court, but before hearing both parties applied for the transfer of the case to the High Court, Khartoum, where it can more conveniently be dealt with.

On October 30, 1957, the case was transferred to Khartoum High Court and was given a fresh number, HC-CS-541-1957

On January 16, 1958, the date fixed for first hearing, respondent applied for leave to amend his claim to enable him to apply for an order to be issued by the court under article 8 of the insurance policy for fresh arbitration or alternatively to claim the full value of the damaged car, as well as damages in respect of injuries suffered by the passengers as a result of the accident.

Applicants objected to the amendment of claim, and at that stage the court, on April 5, 1958, rejected respondent’s application for leave to amend. Consequently, respondent applied to the Chief Justice for the revision of the High Court’s order rejecting his application. On October 1, 1958, the Chief Justice summarily dismissed the application for revision and suggested that respondent may withdraw his present suit and institute a fresh suit embodying the amended claim if he so desired.

On January 31, 1959, respondent applied for leave to abandon his HC-CS-541-1957 and was therefore allowed a fresh civil suit whereupon applicants asked that he should be awarded costs in respect of HC-CS ‘541-1957 which was struck off at the request of respondent.

Respondent objected to question of costs and asked that it should be decided at the end of litigation, and as a result the court made the following order: “Case is hereby dismissed. Costs in that case to be discussed on the final result of the other case, HC-CS-642-1958.”

On February 15, 1959, the applicants made this application to the Chief Justice for the revision of the above-mentioned order by the Province Judge.

In our view applicants are entitled to their costs in respect of the with drawn suit, which has no bearing whatsoever on the result of the fresh suit instituted by respondent under HC-CS-642-1958 It is clear that costs in the withdrawn suit do not follow the event in the new Suit. For this reason we allow this application with costs.

On the agreement of the learned advocates representing both parties the taxed costs in respect of the struck-off suit and this revision are calculated as £S.25.

Therefore, we hereby order that respondent shall pay applicants £S.25

M. A. Abu Rannat C.J. February 28, 1959:—I concur.