In addition…., the appellant also attacks the decision by
the court a quo to award fifty per cent of the
costs to the respondent….,.
3. Costs
The final ground of appeal challenges the quantum of costs awarded against the appellant, which the
court a quo justified thus in its judgment:
“Regarding the question of costs, the ...
In addition…., the appellant also attacks the decision by
the court a quo to award fifty per cent of the
costs to the respondent….,.
3. Costs
The final ground of appeal challenges the quantum of costs awarded against the appellant, which the
court a quo justified thus in its judgment:
“Regarding the question of costs, the applicant
(respondent) has been partially successful given that its main application for
the declaration of s 6 as unconstitutional has not found favour with me, while
the alternative claim has. For that reason, I consider that it cannot recover
all its costs. It has only made a case for 50 per cent of its costs.”
The appellant contends that the judge a quo exercised his discretion injudiciously in respect of
the fifty per cent award of costs, given that the court had considered three
main issues and found for the respondent in respect of only one of them.
Accordingly, the appellant contends, the costs for each of the three issues
should have been thirty three per cent.
I am not persuaded by this contention.
A look at the draft order of the respondent in the court a quo clearly shows that it sought, apart from costs, one
main and one alternative form of relief. It was successful in respect of the
alternative relief sought. To the extent that costs could be apportioned
based on a mathematical calculation of the issues considered by the court, the
50 per cent, even by the appellant's own formula, would be reasonable. I,
however, entertain some doubt as to the practicality of such an approach.
Counsel for the appellant argues, in the alternative, that
even if only two issues were determined by the court a quo,
there should either have been no order as to costs, or each party should have
borne its own costs.
I hold a different view.
All that the respondent, in reality, craved was the removal
of any obstacle to the prosecuting of its claim against SMM Holdings (Private)
Limited. It sought two orders in the alternative, either one of which would
have given the respondent the relief it craved. The court granted the
alternative relief, even though it and all the parties had expended time in
arguing and considering the merits or demerits of the main relief sought by the
respondent. Since the respondent, in the end, secured the entirety of the
relief that it wanted, my view is that it was entitled to part, if not all, of
its costs. However, there having been no cross appeal by the respondent on this
aspect, there would be no basis for interference at this stage. Costs, being a
matter for the court's discretion, I do not in any case find that this
discretion was exercised injudiciously by the judge a quo,
when he ordered the appellant to bear half of the costs.
In all respects, therefore, I find that the
appeal lacks merit and should be dismissed.
