Taxation of Bills of Costs as
between Solicitor and'
Client-Jurisdiction of Courts
therein.
The facts of the case are
sufficiently set out in the
judgment.
C.
J. ](e1npson (C. E. W1'ight
with him) for the Appellant.
E. S. B.
Betts
for the Respondent.
The following judgment was
~livered:-
DEANE, C.J., GOLD COAST.
In this matter Mr. Betts for the
respondent has taken preliminary
objection that no appeal lies.
The circumstances of the case
must be shortly stated in order
that his argument may be
followed.
On the 18th April the
plaintiff-respondent, who is a
solicitor of this Court, sued
out a writ against the
defendant, who resides in Sierra
Leone, for the recovery of the
sum of £546 2s. 6d. which he
alleged to be due to him by way
of costs for professional
services rendered in a case of
Yanni
v.
Horr
which was a matter tried before
the Supreme Court of the Gambia,
and later heard on appeal b~fore
the West African Court of Appeal
in Sierra Leone. The plaintiff
attached to his writ bills of
costs which he alleged had been
delivered to the defendant on
15th February, 1933.
When the matter came on for
trial the defendant filed an
affidavit in which he stated
that the bills of costs had not
been taxed in the Gambia nor had
application to tax them in that
Colony, so far as he knew been
made. Thereupon an order was
made by consent of the parties,
hereinafter referred to as the
order of 6th :May, 1933, in
which it was ordered that" the
plaintiff's bill of costs,
charges and disbursements
delivered to the defendant on
15th February, 1933, for the
recovery of which this action is
brought, be referred to the
Master"
(i.e.
of this Court) " to be taxed
according to the Rules of the
Supreme Court of the Colony of
the Gambia to the records of
which Court reference shall be
made if necessary, and that the
plaintiff give credit at the
time of taxation for all sums of
money by him received from or on
account of the defendant. And it
is further ordered that all
further proceedings in the
action be stayed pending the
reference, and that the costs of
this application be costs ,in
the cause-liberty to apply."
Following on this order the
parties appeared before the
Master, who, after hearing them
on the bills, issued certificate
which read "Taxed as between
solicitor and client at the sum
of £232 l0s. 4d. which I hereby
certify and allow this 15th day
of December, 1933", and "Taxed
as between solicitor and client
at the sum of £211 16s. ad.
which I hereby certify and allow
this 15th day of December,
1933."
Thereupon the defendant, being
dissatisfied with the ruling of
the Taxing Master as to certain
objections taken by him on
taxation, took out a summons
for review by the Chief Justice
under Order 56 Rule 36 of the
local Supreme Court Rules. This
Summons was heard, and the
learned Chief Justice delivered
a ruling on the 28th December,
1933, in which he upheld the
Master's certificate on one bill
but varied it as to the other;
against his order this appeal is
brought.
Now it is, I think, clear that
the Court would have no
jurisdiction to order taxation
by a Master of the Supreme Court
of this Colony of a solicitor's
bill for work done in the Courts
of the Gambia, nor could consent
of the parties avail to confer
on the Court a jurisdiction
which it lacks. Again this Court
has no power, I think, to order
that a solicitor's bill for work
done in the Courts of Sierra
Leone in an appeal case should
be taxed according to the Laws
of the Gambia, nor could the
consent of the parties confer
upon it power to tax otherwise
than in accordance with the laws
of this Colony. If therefore the
order of 6th May, 1933 purported
to do either or both of these
things it was, in my opinion, a
nullity.
Both parties, however, have
submitted that, although the
order on the face of it is an
order to tax bills according to
the laws of the Gambia, that is
mere nomenclature, due to the
fact that the work for which
remuneration is sought was done
by a solicitor, and that the
order of the 6th May, 1933 in
effect operated to refer to a
gentleman, who happened to be
Master of the Court
incidentally, but who was versed
in the taxing law of the Gambia,
the bill of plaintiff for his
services, in order that he might
assist tile Court with his views
as to the reasonableness of the
charges made and that the
decision to be given eventually
would be the decision of the
Judge as to the amount due to
plaintiff for his professional
services. They in fact contend
that by the order there was a
reference made to the Master,
although they differ as to the
effect of the reference, Mr.
Betts contending that the
Master's report is final, while
Mr. 'Wright submits that the
Judge would be in no way bound
by it but would have power to
accept or reject or vary it as
he thought fit-it is not in my
opinion necessary to decide
which of these conflicting views
is right-since, however we might
be disposed to interpret the
order in the sense for which
Counsel contend, and which
perhaps they had in view when
they consented to it, we cannot
possibly do so in view of what
has actually happened in this
case. Not only is the order
itself in terms an order to the
Master to tax the two bills
submitted, but the Master did in
fact tax them and duly affix his
certificate thereto that he
allowed so much on each bill,
and following on that the
procedure when a bill has been
taxed in these Courts has been
followed and the power of the
learned Chief Justice to review
the taxation invoked-while no
report has ever been rendered to
the Court nor did the learned
Chief Justice sit as a Judge in
Court to deliver judgment, as he
would have had he been acting on
the report of a referee, but as
Chief Justice in his Chambers to
review a taxation.
Mr. Betts further submits that
in any case, there being no
appeal from a review of taxation
by the Chief Justice, this
appeal cannot lie, since the
order was not the order of a
Judge and so subject to appeal
under the 'West African Court of
Appeal Ordinance. Now his
argument may be quite sound, and
might no doubt have the effect
for which he is now contending
ill an ordinary case when a bill
has been properly taxed and
reviewed; if, however, we were
to accede to that view in this
case and dismiss the appeal
simpliciter
the result would be that the
order appealed against would
stand, and the respondent would
obtain the benefit of a taxation
which the Court had no power to
order. The Court would in effect
be giving effect to an order
which is a nullity since
everything done in this case has
been done under the order of 6th
May, 1933, which, as we have
seen, the Court had no power to
make. Under the circumstances,
therefore, we think that the
proper order to make is to
dismiss the appeal, but to set
aside the order appealed from
and send the case back for a new
trial.
The confusion has arisen through
the consent order being so
carelessly drawn as not to
effect the intentions of the
parties, and as this is due to
the neglect of both sides
equally we think each party
should pay his own costs of this
appeal and of the abortive
proceedings in the Court below.
BUTLER-LLOYD, J.
I concur.
MACQUARRIE, J.
I concur.
