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Appeal Court. 22 April, 1936. Appeal from Interlocutory Decision of Court.

Payment by Order of Privy Council of costs by an Executor following an unsuccessful appeal-Interpretation of Order.

Held: Costs personal unless Order expressly states otherwise.

The facts are sufficiently set out in the judgment.

O. Alakija for Appellant.

Sir William Geary, Bart., for Respondent.

The following judgment was delivered: WEBBER, C.]., SIERRA LEONE.

This case was taken to the Privy Council on appeal by P. H.

Williams, the surviving executor of the estate of J. R. Shanu, deceased.

On the motion before the full Court for leave to appeal, Counsel for respondent offered no opposition, but pointed out that the assets of the estate were to be safeguarded so that they were not used to prosecute the appeal. The full Court granted leave and made this order .

•• Subject to any order which may be made by His Majesty in Council the appellants shall not utilise the assets of the estate for the purpose of prosecuting this appeal."

The appellant and his co-executor, now deceased, entered into a bond holding themselves and sureties personally liable in the sum of £500 to abide costs of the appeal ..

The case was heard by the Privy Council and the appeal was dismissed and the surviving appellant was ordered to pay costs.

A motion was made before Graham Paul, J. :-

(1) For declaration that Williams was not personally liable for £209.

(2) That plaintiff-respondent should follow the estate distributed to the beneficiaries including the plaintiff, and (8) That Williams be allowed to pay by instalments and recover from beneficiaries.

Paul, J., held that the personal property of the mover (the appellant before the Privy Council) was not attachable under the judgment of the Privy Council and he ordered that the property attached should be released and gave to the mover the costs of the motion.

Against this order E. A. Shanu, the respondent before the Privy Council, appealed on four grounds, namely, that the learned Judge was wrong in law in holding that the costs awarded by His Majesty's Privy Council should be paid out of the estate of J. R. Shanu, deceased; that the learned Judge was wrong in law in not holding that the surviving appellant was liable personally for the costs to the plaintiff-respondent in accordance with the terms of the bond entered into by him; and that the learned Judge was not competent to add to the judgment of the Privy Council the words payable out of the estate" and that the appellant was now precluded from moving the Court as to costs, he not having prayed the Privy Council that such costs should be borne out of the estate.

All these grounds were argued together and the only question in this appeal is : . How is the order as to costs made by the Privy Council to be construed? My answer to this is, if the Privy Council had intended that the costs should be paid out of the estate of J. R. Shanu, deceased, they would have indicated that intention in express terms. The order is unambiguous, and we are not competent to vary it so as to make the estate liable for costs even if we wished to, which we do not. It is the universal practice that where costs are to be paid out of an estate the order should be made in express terms and this practice is followed by the Privy Council as instanced in a case reported in the Nigerian Law Reports, Vol. 3, page 76, Tom Jones, deceased, re Shaw v. Jones and Taylor v. Fasanya.

This appeal accordingly succeeds and the order of the learned Judge is reversed, and the motion brought before him should in my opinion have been dismissed, except that part of it which asks for payment by instalments, the merits of which have not yet been considered.

The appeal is allowed and the order of the Court below, including the order as to costs, is set aside. The appellant is awarded costs in this Court assessed at twenty-five guineas and in the Court below assessed at three guineas. The respondent is to be at liberty to apply again to the Court below for an order upon that part of his motion which refers to payment by instalments.