Table of Contents

Question..................................................................................................................... 3
Introduction................................................................................................................ 3
Discussion.................................................................................................................. 3
Exception to the rule.................................................................................................. 4
Conclusion.................................................................................................................. 5
Bibliography............................................................................................................... 7
Books...................................................................................................................... 7
Website................................................................................................................... 7

Question

The cost follows the event. To what extent does the above assertion apply in the Zanzibar Civil
Procedure? Are there any exceptions to this rule? Discuss.

Introduction
In civil proceedings in an English court, the general rule is that costs follow the event. Whilst
there exists a certain amount of discretion on part of the court to adjust the balance of payment of
the costs, this is seen as an exception to the general rule.
Civil litigations involve expenses, and in some cases the expenses may be considerable. In order
that a successful party should not suffer financial detriment as a result of litigation, courts are
empowered to order the payment of costs by one of the parties to the other; generally costs
follow the cause, that is, that the successful party is awarded the costs
The general rule is that costs follow the event, which means that the loosing litigant will be
ordered to pay the winning litigants reasonable costs and will be left to bear his own. As
Moorhead explained, the reason justify the rule are following; the winner deserves to have the
costs of successful claiming or defending; it protects compensation awards made to successful
claimants; and it deters unmeritorious claims or defenses.1

Discussion
The general rule in relation to costs is set out at section 27(1) of the Civil Procedure Decree2of
Zanzibar which reads;
Subject to such conditions and limitations as may be prescribed, and to the provisions
of any law for the time being in force, the costs of and incident to all suits shall be in
the discretion of the Court, and the Court shall have full power to determine by whom
or out of what property and to what extent such costs are to be paid, and to give all
necessary directions for the purpose a aforesaid. The fact that the Court has no
jurisdiction to try the suit shall be no bar to the exercise of such powers.
Although costs are at the discretion of the court, section 27(1) creates a presumption that costs
will be awarded to the successful litigant. The presumption will only be displaced where there
has been some sort of disentitling conduct by the successful party. This was the discussion by

1 http://www.legalservicesindia.com/article/article/award-of-cost-under-cpc-4801.html
2 chapter 8

The House of Lords in the case of Reid, Hewitt and Company v. Joseph, 3 In which it was held
that,
the expression 'the costs shall follow the event' in the second proviso to Order
LXV, Rule 1, which regulates the costs in jury actions, means that the party who
on the whole succeeds in the action gets the general costs of the action.

Exception to the rule

However, the scope of this principle is limited by section 27 (2)4 which read,
Where the court directs that any costs shall not follow the events, the court
shall state its reasons in writing
Gives the court the discretion to adjust the general rule. So, the court can adjudicate
whether one party has to pay the others cost, and if so, the court can fix amount of these
costs, and decide for which stage of the litigation the costs should be paid. The following
the event principle is only a starting point from which the court may readily depart.5
In Ritter v Godfrey6, Atkin LJ stated the principle in these terms: It is not easy to deduce
from these authorities what the precise principles are that are to guide a judge in
exercising his discretion over costs. And yet as the discretion is only to be exercised
where there are materials upon which to exercise it, it seems important to ascertain the
principles upon which a judge is to discern whether the necessary materials exist. In the
case of a wholly successful defendant, in our opinion the judge must give the defendant
his costs unless there is evidence that the defendant

brought about the litigation, or

3 [1918] A. C. 717
4 Ibid
5https://books.google.co.tz/books?
id=TYXtBAAAQBAJ&pg=PA174&lpg=PA174&dq=exception+to+cost+follow+the+event+in+civil+liti
gation+case+law&source=bl&ots=lutekL0iij&sig=HNvHeSjRrxEavmXUGOXvOhfMu0&hl=en&sa=X&ved=0CEUQ6AEwBmoVChMIkN_EzuuUxgIVhKHbCh29zADW#v=
onepage&q=exception%20to%20cost%20follow%20the%20event%20in%20civil%20litigation%20case
%20law&f=false
6 [1920] 2 KB 47

has done something connected with the institution or the conduct of the suit
calculated to occasion unnecessary litigation and expense, or
has done some wrongful act in the course of the transaction of which the plaintiff
complains.7

As judge Woolf held, the rules require courts to be more ready to make separate orders
which reflect the outcome of different issues. Such was the case in Mutungi v. Kabuchi8
In which the facts were that the plaintiff was involved in motor accident with a vehicle
owned by the second defendant and driven by the first defendant. Two separate actions
were filed on the same day against both defendants. In the first a consent judgment was
entered for the claim of personal injuries, the second suit for damage to his vehicle was
defended. One of the questions for determination was whether or not the plaintiff should
be awarded costs in both actions.
The court held that the plaintiff ought not to be given costs in the second suit, and stated
at page 458;
In this present matter all the injuries were patent when the two actions
were filed on the same day. It is my understanding and experience that
in cases of this nature when injury to property and injury to person arise
out of an accident claims for damages for each type of injury are
included in one suit. I do not propose to award the cost of this action to
the plaintiff.
In the case of Devran Nanji Dhathani.v.Baridas Kalidas Dawda 9 a successful defendant was
deprived of his costs. And On appeal, Sir John Gray, C.J., stated
From the decisions, which were cited to us during the hearing of the
appeal, it appears to me to be clear that a successful defendant, who
after all is brought into court against his will, can only be deprived of
his costs when it is shown that his conduct either prior to or during the
course of the action, has led to litigation, which but for his own conduct
might have been averted.

7 http://www.findlaw.com.au/articles/840/justice-kirby-sets-out-the-parameters-ofcosts-a-.aspx
8 (1996) ECA
9 B D Chipeta, CIVIL PROCEDURE IN TANZANIA A STUDENT MANUAL, DAR ES SALAAM
UNIVERSITY PRESS LTD, Tanzania, 2002,pages 218-219

Therefore unless the Court decides that for some good reason the successful party shall be
deprived of the whole or part of his costs like it was in the above case.

Conclusion
The award of costs is a matter of discretion (section 27(1), and equivalent sections in the other
jurisdictions). The discretion must obviously be exercised judicially, that is to say, not
capriciously. In Sherras v Van der Maat10 the case was fought on the issue of negligence. Third
party notices were exchanged between defendants. Thomas J found that the contribution by the
third defendant to the liability of the first and second defendants, should, in each case, be 100 per
cent. He also said this: In many, perhaps most cases in which a defendant unsuccessfully
defends a plaintiffs action, the discretion to order another even less successful defendant to pay
his costs of defending the plaintiffs action will not be made. This will usually follow from the
fact that such costs may reasonably be regarded as having unnecessarily been incurred. However,
in the present case the only costs that could be so described are trivial or insignificant.

10 [1989] 1 Qd R 114

Bibliography

Mutungi v. Kabuchi (1996) ECA

Reid, Hewitt and Company v. Joseph [1918] A. C. 717
Ritter v Godfrey [1920] 2 KB 47
Sherras v Van der Maat [1989] 1 Qd R 114

Books
B D Chipeta, CIVIL PROCEDURE IN TANZANIA A STUDENT MANUAL, DAR ES

SALAAM UNIVERSITY PRESS LTD, Tanzania, 2002.

Zanzibar Civil Procedure chapter 8

Website
https://books.google.co.tz/books?

id=TYXtBAAAQBAJ&pg=PA174&lpg=PA174&dq=exception+to+cost+follow+the+eve
nt+in+civil+litigation+case+law&source=bl&ots=lutekL0iij&sig=HNvHeSjRrxEavmX
UGOXvOhfMu0&hl=en&sa=X&ved=0CEUQ6AEwBmoVChMIkN_EzuuUxgIVhKHb
Ch29zADW#v=onepage&q=exception%20to%20cost%20follow%20the%20event%20in
%20civil%20litigation%20case%20law&f=false
http://www.findlaw.com.au/articles/840/justice-kirby-sets-out-the-parameters-of-costsa-.aspx
http://www.legalservicesindia.com/article/article/award-of-cost-under-cpc-480-1.html
http://www.legalservicesindia.com/article/article/award-of-cost-under-cpc-480-1.html
http://www.findlaw.com.au/articles/840/justice-kirby-sets-out-the-parameters-of-costsa-.aspx

ZANZIBAR UNIVERSITY
FACULTY OF LAW & SHARIAH
COURSE: civil procedure
NATURE OFR WORK: group assignment
LECTURER: Mr. Kyalo
THIRD YEAR
SIXTH SEMESTER (2015)
SUBMISSION DATE: 17th JUNE 2015
Group Names

Vincent martin muwela

Boikobo mosiki
Shakila utila
Astria uliza
Asante musa

Joan kwatiwani
Chifundo Jonas
Nasra muhammed