Edmund Adolphus Collingwood Davies & Mcneil Samuel Brown [1924] SLCA 3 (24 December 1924)

23rd D.ctm• ber, 192~. 160 ED}fUND ADOLPHUS COLLINGWOOD DAVIES Appellant. 1), )fcXEIL S.A~fGEIJ BBOWN and )Jc:NEIL SA'.llUEIJ BROWX v. - Respondent. - Appellant. ED~IUND ADOIJPHUS COIJLIXGWOOD DAVIES Respond en t. 1 Subject matter £300 in value-Meaning of term "No order as " to costs " in Court of Appeal. The facts of this ca~e are sufficiently set out in the judgment. Application for lea>e to appeal to IIis :llajest.y in Council from a judgment of the Full Court o£ Appeal dismissing an appeal from tl1e judgment of II is lion our tl1e Chief Justice, given in fa>our o£ the Respondent Brown, and an application by the Respondent Brown relating to the incidence of the costs in the Full Court and in the Court below. Ladepon-Thomas for first Appellant and the second Respondent. A. J. Sho1•tmlceh Sawyer1• for tllC second .Appellant and the first Respondent. PRIOR, Acting J. This is an application by the Appellant Davies for leave to appeal to Tiis :Majesty in Council from the decision of the l!'ull Court dismissing an appeal from the judgment of His ITonour the Chief Justice given in favour of tlie Respondent Drown. In the nction tried by the learned Chief Justice the .Appel­ lnnt claimed possession of certain lanrls at Pah J;okkoh, damages for alle~ed tr<'spass and compensation for the alleged appropria - 1 ion of se>enty -five kola trees. There be1n~ no e>idence before the Comt that these suhject matters of the action were of the value of £300 or upwards, the application must be dismissed with costs. t Set p. 139. 161 'rhe appeal of Brown versus Davies relates to the incidence of the costs in the :Full Court and in the Court below. In the action from which the appeal originated the learned Chief Justice gave judgment for the Appellant Brown with costs. In the petition in support of his application for leave to appeal to His .Majesty in Council, the Appellant Brown argues that the effect of the pronouncements of my learned brothers in the Full Court on the question of costs is to deprive him of the costs in the Full Court only, but contends that in the cir­ cumstances it TI"as not TI"ithin the discretion of the Full Court to deprive him of either costs in the Full Court or in the Court below. I do not propose to decide either of these questions. I n view of the fact that there has been no evidence before the Court as to the amount of the costs in the Court below, or in the Full Court, I am of the opinion that the application should be dismissed with costs. McDONNELL, A.cting C.J. Although in his petition in this case the Appellant Davies' Solicitor states that the vah1e of the land concerned is above the appealab le vah1e of £il00, we have no evidence before us by affidavit or otherwise on that point, and the application must be dismissed with costs. As to the application to appeal on behalf of Brown, which was consolidated with the other application under rule 15 of the Order in Cotmcil. 1 This, in efrect, is aimed at securing an interpretation o£ the words which occur in my learned hrother Lloyd's judgment:- " For the reasons given this appeal will be dismissed, '' and in the circumstances no order will be made as to " costs;" in my judgment :- " For these reasons I agree that each party must bear " its own costs both in this Court and in the Court below;" and in my learned brother Sawrey -Cookson's judgment :- " This is a proper case in which the Court should make '' no order as to costs,'' £or this is the order in which those judgments were delivered, and not that in which they a.re set out in the applicant's petition where the extract from my judgment is placed last. 1 Vol. III, p. 769. DAYIES v. BROW~, AND BROWN v. DAVIL$ . PR IOU, A CTJ);O J . D AVII::S v. BROWN, AND BROWN v. DAVIES. McDo~~llLL, ACTING C.J. Hi~ I n plain Eng lish it is suggested that the majority of the Full Court was of opinion that the order as to costs in the Court below shou ld stan d. ~lr. Sawyerr relies upon Yeo u. '£atem, 40 L .J. Reports, Admiralty, p. 29. This was an appea l dated 1871, and therefore heard before the J udicature Act was passed, from the H igh Cour t of .A dmiralty to the Privy Council, in which, as t he headnote records, it wa:s held that although an appeal will not be allowed in 1·espect of ro,.,ts only, yet " where there has been a mistake "' upon some matter of la''" which goYei·us or a:f:Yccts the costs, " tbe party prej udieed is entitled to h:,we the benefit o£ correction " of appea l." I cannot agree that a pl'l'-J udicatme Act decision on a point of practice st:ch as this can be held applicab le to an appeal under the Order in Couut·il of loth February, 1909, which limils a right of appeal io ca:.e, im-oh·ing £300 Ol' upwards, or to cases of great general or public importance . I n any event there is nothing to show what would be the amount of costs in this case. F inally, can it be supposed that if I differed from my brother Lloyd a:s to co:sts 1 should haYe said " for these "reasons I agree that each party must bear its own ('Osts. both ''in this Court and in tl1e ('oUl't below," or lhaL my brother Cookson, if he differ('d from me, would haYe pre£a<·ed his as~ent­ ing judgment with the word:-; ·• I entirely agree "; and that, i£ he differed from my decision on the point, he would not have taken care to say so? F or these reasons I hold that thi~ application must be dismisse d with costs. L EVY, .Acting J. I agree .