Case referred and referee's
remuneration fixed-case settled
out of Court and .subsequently
strictly. out-application for
refund of referee's fees struck
Out-motion' to set aside or vary
order of reference-opinion of
Court sought.
Held: Court cannot review
interlocutory order after final
judgment. The facts of this case
are sufficiently set out in the
opinion.
O.
Alakija
for Plaintiff.
W. Wells-Plamer
for Defendant.
The following joint Opinion was
delivered:-
BUTLER-LLOYD, ACTING C.J.,
NIGERIA, AITKEN
AND BARTON, .JJ.
This is a case stated by Graham
Paul, J. for the opinion of this
Court.
The relevant facts are as
follows:
On 26th April, 19a4, an order
was made by consent or the
parties referring the case to a
referee whose remuneration was
fixed at ten guineas, five to be
paid by each side.
This sum was paid to the referee
shortly afterwards.
The parties having composed
their differences informed the
Court that the case was settled,
and it was struck out on October
1st, 1934.
On 21st March, 1935, the
plaintiff filed a motion for an
order to the referee to refund
the five guineas paid by him but
this motion was dismissed on the
ground that the order under
which the payment was made still
stood.
On the 1st April, 1935, the
present motion was filed to set
aside or vary the order of
reference. Notice of the motion
was given to the referee.
The learned trial .Judge after
hearing argument did not in
terms review the order of
reference, but indicated that he
considered he ought to GO so and
order the referee to file
particulars of the work done in
order that a proper remuneration
might be fixed by the Court,
leaving the parties to recover
any excess by action.
An interesting point was raised
as to whether the relationship
between a referee and the
parties is an ordinary
contractual one or whether the
referee is to be regarded as an
officer of the Court.
We think there is much to he
said for the latter view, but
his position as such would
surely terminate when the suit
was finally disposed of.
Whatever view be taken as to
this, we are of opinion that it
is not competent for a Court to
review an interlocutory order
made in the course of a case
when once final judgment has
been given.
In our opinion the motion for
review ought to be dismissed.
The referee will have costs in
this Court assessed at seven
guineas.