George Balamoan v Aidan Gaffney (1971/HP/549) [1971] ZMHC 7 (12 October 1971)

GEORGE BALAMOAN v AIDAN GAFFNEY (1971) ZR 29 (HC) HIGH COURT SILUNGWE AJ 12TH OCTOBER 1971 (1971/HP/549) Flynote I Costs - Whether plaintiff liable to pay at a result of issue of an irregular writ 15 Headnote The plaintiff served a writ of summons on the defendant on a Sunday. The defendant entered an appearance and the plaintiff then filed a notice of discontinuance. The defendant taxed his bill of costs. Held: Although the plaintiff's service of the writ was irregular, the 20 defendant was entitled to ■ enter an appearance to safeguard his interests. Legislation referred to: High Court Rules (Cap. 3), O. 8, r. 9. The United Kingdom Sunday Observance Act, 1677, s. 6. I L Samuel, Senior legal Aid Counsel, for the appellant. 25 J McLellan - Shields, Barrister (not present), for the respondent. Judgment Silungwe AJ: This is an appeal by Mr George Balamoan, who is the plaintiff, against an order made by the Acting Deputy Registrar on the 2nd August, 1971, which requires the plaintiff to pay the defendant's costs incurred by the defendant before receipt of the plaintiff's notice of 30 discontinuance. The costs aforesaid were later taxed and assessed at K111.12. Mr Samuel, Senior Legal Aid Counsel, who is acting for the appellant has argued that the Acting Deputy Registrar's order for costs against his client should never have been made on the ground that it completely 35 ignores the illegality of the manner in which service of the writ was effected by the plaintiff. That service was effected upon the defendant on a Sunday. This point is not in dispute. Order VIII, r. 9 of the High Court Rules, Cap. 3, reads as follows: "Service in a civil cause shall not be made on Sunday, Good Friday or Christmas Day". The United Kingdom Sunday 40 Observance Act of 1677 which applies in Zambia has a similar provision to be found in section 6 therein. Mr Samuel maintains that that service on Sunday was void and that it cannot in law place on the person so served any obligation to take steps such as entering an appearance in ■ ■ ■ 1971 ZR p30 I SILUNGWE AJ order to oppose the claim in the writ. He submits that the defendant could quite safely have ignored the whole process because in law the writ had never been served upon him and therefore the plaintiff could not legally have taken any effective process against the defendant in reliance on such 5 service. He asserts that what the defendant was really doing was purporting to enter appearance without having been legally served with the writ. He goes on to say that if there was no service there was nothing to enter appearance to. From the moment the defendant entered appearance he began to incur costs unnecessarily. In his submission he says it is a well established 10 principle of taxation that a party to litigation who incurs costs unnecessarily cannot recover such costs, but can only recover costs properly incurred. He says that his action in discontinuing the proceedings cannot affect the position because he was not discontinuing service, he was in effect withdrawing the writ, which in law had not at that 15 time been served. He further says that in any event even if the invalid service had not taken place, he would have discontinued the proceedings because the endorsement on the writ was itself irregular and could not be enforced by the plaintiff. He adds that he was not responsible for the endorsement on the said writ. Mr 20 McLellan - Shields, counsel for the respondent, contends that if a plaintiff chooses a wrong mode of action, he cannot put the defendant in peril at one stage and then change his mind without making himself liable for costs incurred by the defendant because of the plaintiff's action. He says that his client is a layman who accepted service ■ ■ I ■ I ■ of the writ by the 25 plaintiff served on him on a Sunday although he refused to sign it. It was reasonable thereafter for his client to enter an appearance, to safeguard his interests. He goes on to say that a copy of the memorandum of appearance was served on the plaintiff's solicitors who acquiesced in what amounted to a waiver of irregularity. It 30 must be said at this stage that the plaintiff was originally represented by Jaques & Partners and that the Department of Legal Aid have since taken over the conduct of the proceedings. After appearance had been entered by the defendant's solicitor the defendant's solicitor filed summons to set aside service of the writ for irregularity. Thereafter, the 35 plaintiff, through his solicitors, the Department of Legal Aid, served notice of discontinuance on the defendant's solicitor. It was on the strength of that notice of discontinuance that the defendant's solicitor quite properly made an ex parte application to the Acting Deputy Registrar on the 2nd August, 1971, for an order for costs against the plaintiff in 40 terms of O. XVII, r. 1 of the High Court Ordinance, Cap. 3. That application was granted and consequently the defendant's bill of costs was taxed. I agree with Mr McLellan - Shields' contention and hold that if a plaintiff chooses a wrong mode of action and thereby makes the defendant 45 to incur costs he should not thereafter allege that any costs incurred by the defendant have been incurred unnecessarily. I take the view that it is improper for a plaintiff to involve the other party in costs and then turn round and say that such costs have been incurred unnecessarily. If it had ■ ■ 1971 ZR p31 I SILUNGWE AJ not been for the plaintiff's issue of the irregular writ the defendant would never have incurred the costs that he has. I hold that those costs incurred by the defendant were properly and necessarily incurred. Mr Samuel's argument that since the writ was served on the defendant on a Sunday, that service was void in law and that the defendant should not have 5 entered any appearance because there was nothing to enter appearance to, does not weigh with me. To my mind the defendant was perfectly entitled to enter an appearance conditional or unconditional in order to safeguard his own interests. The fact that Mr Samuel was not responsible for the irregular I endorsement on the writ is neither here not there. 10 In view of the foregoing, I find that there is no merit whatsoever in this appeal. Accordingly the appeal is dismissed, with costs of this application against the appellant which shall be taxed in default of any mutual agreement being reached between the parties. ■ Appeal dismissed 15