(COURT OF APPEAL)*

HASSAN MUSA IDRIS v. BOXALL ENGINEERING COMPANY

AC-RE V-230-1966

Principles

·  Civil Procedure—Costs—Within discretion of the court—Civil Justice Ordinai s. 100—Costs follow the event

·  Civil Procedure—Costs—Court may deprive successful party of his costs

·  Civil Procedure—Costs—Costs payable must be included in the decree—Civil Justice Ordinance, s. 94 (2)

(i) According to Civil Justice Ordinance, s. 100, the amount of costs payable to one party by other is within the discretion of the court, subject to the overriding principle that costs follow the event.
 (ii) The court, according to the circumstances of each case, may deprive a successful party of his costs.
(iii) According to Civil Justice Ordinance. s. 94 (2), the amount of payable must be included in the decree.

Judgment

Advocates: Abdalla El Hassan and Abdel Wahab Abu

Shakiema …………………………………….for applicant

Abdel Waham and El Tigani……………………………..for respondent

El Fatih Awouda J. October 30, 1966: - instituted Khartoum CS-456-1959 against respondents claiming a total of £S.2, 950 by way damages for breach of contract to supply spare parts of a cinema generator. The learned trial judge came to the conclusion that the damages were too remote save for the damage resulting from the supply of spare parts not a:ording to description, but that as the necessary evidence as to its amount as not given he awarded applicant one piastre nominal damages and j a decree as follows:

The plaintiff be awarded only one piastre as rominal damages and costs.”

Applicant failed in his application for revision to the Province Judge from the judgment and decree of the District Judge and again failed in a similar plication to the Court of Appeal, where the Honourable Judge of the High Court, after summarily dismissing the application, commented:

Applicant is very lucky in obtaining even a judgment for nominal damages and thereby recovering his costs.”

Thereafter respondent sought to recover the costs which were calculated to be £S.96.030m—ms and execution proceedings were commenced for the n.forcement of payment of that sum when respondents objected and maintained that costs recoverable were those to be assessed on the amount of the remedy actually granted and referred to Civil Justice Ordinance, Ord. XXIII, r. 2 (2). This was their main ground for their second revision to the learned Province Judge who allowed the application and gave the trial judge leave to review his decree with a view to state the specific amount of costs to be paid and include that sum in the decree. Applicant then applied to this court against that order and contended that the question of the amount of costs had already been decided by this court ri the first revision referring to the note already cited.

The question of costs has not been the subject of revision in the first revision which was only against the amount of the damages awarded and accordingly no order regarding its amount has been made by this court.

In their oral arguments before us the learned advocate for applicant maintained that•when the trial court awarded “nominal damages and costs,” j meant “full costs,” while advocate for respondent reiterated the argument that by Ord. XXIII, r. 2 (2), the court is precluded from awarding Costs to a successful plaintiff beyond the value as to which he is successful. Ihe learned advocate for respondent is undoubtedly mistaken in his belief. The order he referred us to deals only with advocates’ costs and no more.

The relevant section of our law dealing with the question of costs is Civil Justice Ordinance, s. too. The general rule is that costs of an action are within the discretion of the court subject to the overriding principle that costs follow the event. This simply means that when a plaintiff has been successful he ought not to be deprived of his costs unless he has been guilty of some sort of misconduct. But whether a plaintiff is really successful is another matter. In Ariglo-Cyprian Trade Agencies Ltd. V. Paphos Wine Industries Ltd. [1951] 1 All ER. 873—874, Devlin J., as he then was, stated:

In applying that rule, however, it is necessary to decide whether the plaintiff really has been successful and I do not think a plaintiff who recovers nominal damages ought necessarily to be regarded in the ordinary sense of the word as a “successful plaintiff” In certain cases he may be, e.g., when part of the object of the action is to establish a legal right, wholly irrespective of whether any substantial remedy is obtained. To that extent a plaintiff who recovers nominal damages may properly be regarded as a successful plaintiff, but it is necessary to examine the facts of each particular case.”

Applicant action was not for the purpose of establishing a legal right. But he has claimed actual loss alleged to have been sustained as a result of breach of contract and moreover he exaggerated his damages and has substantially failed to prove that loss and was not entitled to more than nominal damages. It cannot be said in the circumstances that he was a successful plaintiff.

There is no need to send the case back to the court below to revew the question of costs for the purpose of ascertaining the amount because it was basically wrong to award costs to plaintiff in this action.

Before concluding this judgment, I must draw the attention to the fact that the amount of costs payable to one party by the other must always be stated and must always be included in the decree. This is an impera tive requirement of Civil Justice Ordinance, s. 94 (2).

In the result this application is dismissed and the order of the learned Province Judge giving leave to review is hereby set aside. The decree of the District Judge is to be amended as follows:

“No order as to costs.”

Osman El Tayeb J. October 30, 1966: -—I agree. I have nothing   useful to add.