Wakilii

Kiska Limited v Vittorio De Angelis (Civil Case No. 243 of 1965)

East African Court of Appeal · [1968] EACA 7 · 1968 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court order on costs following consent reference to referee
Decision
Appeal allowed with costs order varied in favour of appellant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that where a defendant successfully establishes a set-off and counterclaim exceeding the plaintiff's claim, the defendant is entitled to judgment for the balance with costs, including costs of the claim, unless there are good reasons to deprive the defendant of costs. The trial judge erred in awarding the plaintiff costs of his claim and in failing to award the defendant costs of evidence taken and the reference, both of which related solely to the successful counterclaim.

Outcome

Appeal allowed with costs order varied in favour of appellant

Facts

The respondent plaintiff sued the appellant defendant for Shs.69,765/20 in arrears of salary. The defendant admitted the claim but counterclaimed for damages for breach of contract and sought set-off. Before trial, evidence of a defence witness (Mr. Rocco) was taken de bene esse. On 27 October 1965, the defendant admitted the plaintiff's claim in full and by consent the counterclaim and set-off were referred to a referee. The referee found that after crediting the plaintiff's admitted claim, the plaintiff owed the defendant a balance of Shs.6,442/80 (later stated as Shs.6,642/80). The trial judge entered judgment for the plaintiff for Shs.69,765/20 and for the defendant for Shs.76,408/-, and awarded each party costs of their respective claims. The defendant appealed the costs order.

Issues

  1. Whether the plaintiff should be awarded costs of his claim when the defendant's set-off and counterclaim exceeded the plaintiff's claim.
  2. Whether the defendant should be awarded costs of taking evidence de bene esse when that evidence related solely to the successful counterclaim.
  3. Whether the costs of the reference should be shared equally or awarded to the successful party on the counterclaim.

Orders

  • Appeal allowed.
  • Paragraphs 1 to 4 of the lower court order deleted.
  • By consent, judgment for the plaintiff for Shs.69,765/20 on the claim and for the defendant for Shs.76,408/- on the counterclaim.
  • The plaintiff to pay to the defendant his costs including the costs of taking the evidence of Mr. Rocco de bene esse and the costs of the reference.
  • The defendant to pay to the plaintiff the costs incurred by amending the defence and by that part of the counterclaim alleging breach of contract including instruction fees to defend and getting-up fees in respect of such part of the counterclaim.
  • Costs of the appeal awarded to the appellant.

Rules and key headnotes

Civil Procedure — Costs — Set-off and Counterclaim — Proper Form of Judgment and Costs Order
Where a defendant successfully establishes a set-off and counterclaim that exceeds the plaintiff's claim, the proper order is to enter judgment for the defendant for the balance due, with costs, unless there are good reasons to deprive the defendant of costs.
Civil Procedure — Costs — Discretion of Trial Court — Grounds for Appellate Interference
Where a trial court has exercised its discretion on costs, an appellate court should not interfere unless the discretion has been exercised unjudicially or on wrong principles, or where the appellate court is satisfied that the order is wrong.
Civil Procedure — Costs — Successful Defendant — Deprivation of Costs
A successful defendant can only be deprived of costs when it is shown that the defendant's conduct, either prior to or during the course of the suit, has led to litigation which, but for the defendant's own conduct, might have been averted.
Civil Procedure — Costs — Evidence Taken and Reference — Costs Follow Success on Issue
Where evidence is taken or a reference is ordered solely in relation to a counterclaim or set-off on which the defendant is wholly successful, the defendant is entitled to the costs of that evidence and reference as costs follow the event on that issue.

Legislation cited (2)

Cases cited (5)

  • Devram Nanji Dattani v Haridas Kalidas Dawda (16 EACA 35)
  • Donald Campbell v Pollak [1927] AC 732
  • Provincial Bill Posting Co v Low Moor Iron Co [1909] 2 KB 344
  • Chell Engineering Ltd v Unit Tool and Engineering Co Ltd [1950] 1 All ER 378
  • Childs v Blacker [1954] 2 All ER 243

Full judgment

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Kiska Limited v Vittorio De Angelis (Civil Case No. 243 of 1965) [1968] EACA 7 (17 July 1968)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.