Wakilii

Mayer and Others v Trustees of the Rahimtulla Lalji Hirji Charitable Trust (Civil Appeal No. 16 of 1952)

East African Court of Appeal · [1955] EACA 18 · 1955 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya concerning costs order following successful preliminary objection
Decision
Appeal allowed; costs order of trial judge set aside and costs awarded to appellants

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the trial judge improperly exercised his discretion in depriving the successful party of costs. A judge's decision that an appeal was incompetent constituted an effective and conclusive determination — an 'event' — for purposes of costs. That a successful preliminary objection prevented consideration of the merits could not constitute good reason to deprive the successful party of costs. The legitimate use of procedural machinery cannot justify a special costs order against a successful party.

Outcome

Appeal allowed; costs order of trial judge set aside and costs awarded to appellants

Facts

The respondent landlord appealed to the Supreme Court of Kenya against a decision of the Central Rent Control Board concerning repairs to premises known as the Central Hotel in Nairobi. The appellants were statutory tenants holding over after their lease expired on 30 September 1949. The Board had adjourned a hearing to determine which repairs were the liability of landlord and which of tenant. On appeal to the Supreme Court, the appellants (then respondents) successfully took a preliminary objection that the appeal was incompetent because there had been no 'determination' by the Board. The trial judge dismissed the appeal but ordered each party to bear its own costs, stating he doubted there was any 'event' and that the preliminary objection had prevented argument on the merits and was likely to cause unnecessary delay and expense.

Issues

  1. Whether the trial judge properly exercised his discretion in depriving a successful party of costs following a successful preliminary objection.
  2. Whether a decision that an appeal is incompetent constitutes an 'event' for purposes of costs orders.
  3. Whether a decision which is not enforceable by execution constitutes a 'determination' within the meaning of section 7 of the Increase of Rent (Restriction) Ordinance, 1949.

Orders

  • Appeal allowed.
  • Appellant granted costs of the appeal in the court below.
  • Appellant granted costs of the appeal to the Court of Appeal.

Rules and key headnotes

Civil Procedure — Costs — Discretion to Deprive Successful Party of Costs
A court's decision that an appeal is incompetent constitutes an 'event' for purposes of costs orders, being an effective and conclusive determination of the question before the court.
Civil Procedure — Costs — Special Order Against Successful Party
That a successful preliminary objection shuts out consideration of a case on its merits cannot constitute good cause to deprive a successful party of costs under section 27(1) of the Civil Procedure Ordinance or to make an order that does not 'seem just' under rule 11 of the Rent Restriction Rules.
Civil Procedure — Costs — Legitimate Use of Procedural Machinery
The legitimate use of the machinery of justice can never constitute good cause to deprive a party of costs. A preliminary objection taken at the earliest opportunity which succeeds in law cannot be held against a party as justification for a special costs order.
Statutory Interpretation — Meaning of 'Determination' — Rent Restriction Legislation
Sheikh Noordin Gulmohamed v Sheikh Bros Ltd does not establish as a proposition of law that there can be no 'determination' of a triable issue by a court or statutory tribunal unless as a result a party is left with something capable of positive enforcement. Dicta in judgments must be read in light of the particular facts before the court.

Legislation cited (4)

  • Rent Restriction (Enforcement of Determinations and Orders of the Board and Appeals from the Board's Determinations and Orders to the Supreme Court) Rules of Court, 1950 rule 11
  • Civil Procedure Ordinance s.27(1)
  • Increase of Rent (Restriction) Ordinance, 1949 s.7
  • Rent Restriction Ordinance, 1949 s.27

Cases cited (11)

  • Slatford v Erlebach (1912) 3 KB 155
  • Hem Singh v Mahanl Basant Das (1936) 1 AE 356
  • Ritter v Godfrey (1920) 2 KB 47
  • Donald Campbell & Co Ltd v Pollak (1927) AC 732
  • Home Marine Insurance Co Ltd v Smith (1898) 1 QBD 829
  • Genforsikrings v Da Costa (1911) 1 KB 137
  • Cardiff Corporation v Isaacs (1921) 125 LT 571
  • Sheikh Noordin Gulmohamed v Sheikh Bros Ltd (18 EACA 42)
  • Hartland-Mahon v Joseph Wood (Civil Appeal No. 24 of 1951)
  • Burnaby v Earle (1874) 9 QBD 490
  • Maitland v Raisbeck (1944) KB 689

Full judgment

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Mayer and Others v Trustees of the Rahimtulla Lalji Hirji Charitable Trust (Civil Appeal No. 16 of 1952) [1955] EACA 18 (1 January 1955)
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.