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GUSTAVUS JOHN AND ANOTHER
V.
ATTORNEY-GENERAL
WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
4TH DAY OF DECEMBER, 1952
APPEAL NO. 19/52
2PLR/1952/59 (WACA)
OTHER CITATION(S)
2PLR/1952/59 (WACA)
(1952) XIV WACA PP. 229-230
LEX (1952) – XIV WACA 229-230
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.,
SMITH, C. J., SIERRA LEONE,
COUSSEY, J. A.
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BEFORE THEIR LORDSHIPS:
IN THE MATTER OF THE PUBLIC LANDS ORDINANCE AND IN THE MATTER OF CERTAIN LANDS SITUATE AT BLACKALL ROAD, FREETOWN, IN THE COLONY OF SIERRA LEONE:
GUSTAVUS JOHN AND ANOTHER- Appellants
AND
ATTORNEY-GENERAL – Respondent
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ORIGINATING COURT(S)
Appeal by owners of land taken under the Public Lands Ordinance
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REPRESENTATION
J. C. Zizer for Appellants
M. C. Marke for the Respondent, the Attorney-General
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LAND:- Acquisition of public land and offer of compensation – Award made by court on application of the Attorney-General applied – Where deemed too low by land owners – How treated
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PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT AND ORDER:– Costs in case under Public Lands Ordinance – Costs against the Crown – Rules, Order 46 and Order 48
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CASE SUMMARY
Order 46, rule 1 provides:-
“1. Subject to the provisions of any Ordinance and these rules, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court: … Provided also that the costs shall follow the event unless the Court shall, for good cause, otherwise order”.
Order 48, rule 1 provides:-
” 1. Subject to the provisions of this Order, nothing in these Rules, save as expressly provided, shall affect the procedure or practice in any of the following causes or matters:-
“(b) proceedings in which the Crown is a party or is interested; … “
Land of the appellants was taken; the Crown offered £200 odd as compensation, they claimed over £30,000; the Attorney-General applied to the Court to decide, and the Judge awarded £1,338 3s. 6d. but made no order as to costs. The owners appealed on the ground that the award was too low (but in fact it was generous) and this is the point of this report-that they should have had costs. For the Attorney-General it was argued that as the Ordinance was silent on costs the Judge had no jurisdiction to award them, and also that this being a Crown proceeding pursuant to Order 48 of the Rules of Court the Crown was exempted from costs under Order 46.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
Where a Court is given power to adjudicate on a matter in dispute, the Court has an implied power to award costs; this was not a Crown proceeding within the meaning of Order 48, and as in the Court below the appellants won much more than had been offered as compensation, they ought to have had their costs.
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MAIN JUDGMENT
The following Judgment was delivered:
SMITH, C. J. (SIERRA LEONE.)
A number of points arise in this appeal and the first one is that the appellant complains that the learned Judge who tried the issue ought to have awarded a larger amount of compensation for the land which was taken. It is quite clear to me that the learned Judge took into consideration all the items of value in the property in arriving at the figure of £50 an acre. He included in it the fact that in the property was a large and apparently in exhaustible supply of syenite stone which is used for building purposes. The respondent has not appealed against the amount awarded and for myself I consider that he is the only person who might complain about the amount awarded. Certainly the appellant has no cause for complaint and I would not upset the Judge’s finding on that point.
The second main point is that the learned Judge made no order as to costs.
The appellant submits that he had power to make such an order and that he ought to have made an order in the appellant’s favour. For the Attorney-General Mr. Marke submits firstly, that as the Ordinance is silent on the question of costs the Judge had no jurisdiction to make any award of costs.
Secondly, it is submitted that as this case was a Crown case therefore the provisions of Order 48, which exempts the Crown from the provisions of Order 46 relating to costs, applies and still further restricted the Judge’s jurisdiction. I am of opinion that where a tribunal of this kind is given power to adjudicate on matters in dispute it must follow it has an implied power to award costs. A note in the White Book on Order 65, rule 1 says this:-
“By the Judicature Act of 1925, section 50, the discretion given by these Rules (that is the rule about costs) is made further subject to the express provisions of any other Act. Where an Act is silent as to Costs, the discretion as to costs is unfettered except by this rule “.
I therefore say that the learned Judge did have a discretion as to costs. I further say that this was not a Crown proceeding within the meaning of Order 48 and is therefore not taken out of the general Order 46. Having decided that the learned Judge had a discretion did he exercise it correctly? The Attorney-General brought the claimants to Court –
(1) To prove their title, which they succeeded in doing;
(2) To assess compensation.
The Crown offered I think two hundred odd pounds. The Judge awarded £1,338 3s. 6d. It is true the claimant had claimed over £30,000 but so far as his opponent the Attorney-General was concerned, he won quite handsomely on the question of compensation. In my opinion the learned Judge ought to have exercised his discretion in the claimant’s favour and made an order for costs.
I would amend the judgment of the learned Judge to that extent.
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COUSSEY, J. A.
I concur.
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FOSTER-SUTTON, P.
I concur.
Appeal against quantum of compensation awarded, dismissed. Appeal against failure to award claimant’s costs, allowed, and the Judgment is hereby set aside to that extent, and we order that the appellants do receive their costs in the Court below, to be taxed. No order as to costs on this appeal.
Appeal allowed on costs.
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