Attorney-General v Gandala (Appeal No. 4 of 1971) [1971] ZMCA 1 (20 April 1971)

ATTORNEY-GENERAL v GANDALA (1971) ZR 9 (CA) COURT OF APPEAL PICKET JP, MAGNUS AND GARDNER JJA 20TH APRIL 1971 (Appeal No. 4 of 1971) Flynote Costs - Whether defendant Liable for costs after payment into court of a sum 5 exceeding that awarded to the plaintiff. Headnote The High Court ordered the defendant to pay all the costs in spite of the payment into court of a sum greater than that awarded to the plaintiff by judgment. 10 Held: A defendant who has paid money into court which exceeds the sum awarded to the plaintiff is a "successful party" and is entitled to be paid his costs from the date of payment in. Cases referred to: 15 (1) Findlay v Railway Executive [1950] 2 All ER 969. (2) Campbell (Donald) & Co. v Pollak [1927] AC 809. Legislation referred to: High Court Ordinance (Cap. 3) O. 26, para. 6. Judgment Pickett JP: delivered the judgment for the court: This is an 20 appeal against the order made by the Honourable Mr Acting Justice Bruce - Lyle as to costs in this case and the grounds of the appeal are as follows: 1. The learned judge failed to exercise his discretion judicially by failing to award costs to the defendant after payment into court 25 of an amount exceeding the sum awarded. 2. The learned judge erred in law by depriving the defendant of his costs after payment in for no reason and upon insufficient materials. 3. The learned judge erred in law by awarding to the plaintiff costs arising after payment in. There 30 is nothing on the record in this case to show what was the learned judge's reason for ordering the defendant to pay all costs to date. This brings the present, case on all fours with the case of Findlay v Railway Executive (1), wherein it was held that a defendant who has paid money into court which exceeds the sum awarded to the plaintiff is a "successful 35 party" within the meaning of the principle laid down by Viscount Cave, L C, in Campbell (Donald) and Co. v Pollak (2) and is entitled to be paid his costs as from the date of payment in. In the present case, the sum of K3,000 was paid into court and the learned trial judge gave judgment for K1,600 only. 40 I would also mention that in O. 25 of the High Court Ordinance, Cap. 3, para. 6, it is stated that the judge, in exercising his discretion as to costs, shall take into account both the fact that the money has been paid into court, and the amount of such payment 1971 ZR p10 PICKETT JP In our view the order made by Mr Acting Justice Bruce - Lyle was incorrect and cannot be supported. Accordingly we quash this order and substitute the following: Costs to the plaintiff up to the date of payment in, and costs to the 5 defendant after the date of payment in. Order accordingly