Counsel
for the first respondent submitted that the concessions made by counsel for the
applicant are, in essence, a withdrawal, and should have been made with an
offer of the first respondent's costs.
Counsel
for the applicant submitted that he had not withdrawn the application but
merely made concessions which enables the court to dismiss the ...
Counsel
for the first respondent submitted that the concessions made by counsel for the
applicant are, in essence, a withdrawal, and should have been made with an
offer of the first respondent's costs.
Counsel
for the applicant submitted that he had not withdrawn the application but
merely made concessions which enables the court to dismiss the application.
To
this, counsel for the first respondent's response was that costs must follow
the result.
This
is what should happen, in general, but in this case, counsel for the applicant
submitted, that the case turned on a legal point raised by the court, therefore
each party must bear its own costs. He referred to the case of Masudi v Jera
HH67-07 where MAKARAU JP..., said –
“Regarding
costs of this appeal, it is our view that since the appeal succeeds on a legal
point that was not raised by the appellant in his notice of appeal, or in his
heads, we see no basis for making an order of costs in his favour.”
Counsel
for the first respondent submitted that this case must be distinguished from
the Masudi v Jera HH67-07 case..., because in the Masudi v Jera HH67-07 case
the point of law raised by the court had not been raised by the appellant in
the lower court, in his notice of appeal, and in his heads of argument prepared
for the appeal.
In
my view, there is merit in counsel for the first respondent's submission. The
denial of costs to a successful party on the ground that his counsel had not
raised a point of law, and only succeeded because of the court's intervention,
must be arrived at when it is absolutely clear that, but for the court's
intervention, the successful party would not have raised the point of law. In
this case, the issue of compliance with KUDYA J's order was raised by the court
when the applicant's counsel was making his submissions. The respondent's
counsel had not had an opportunity to respond. One cannot, in these
circumstances, say he would not have raised it in the first respondent's
response. I am therefore satisfied that this case is distinguishable from the
Masudi v Jera HH67-07 case...,. The first respondent incurred expenses in
defending an application which the applicant should have known would not
succeed because of its failure to enforce the order granted to it by KUDYA J.
The costs must, therefore, follow the result. In the result, the applicant's
application is dismissed.
The applicant shall pay the first respondent's
costs.
