KINGDON, C.J., NIGERIA AND PETRIDES, C.J., GOLD COAST (GRAHAM PAUI., C.J., SRIERRA LEONE, concurring). KINGDON, C.J., NIGERIA. This is an application for special Conditional Leave to appeal from two Orders of the Divisional Court, Cape Coast. The first Order was made by Fuad, J., ex parte on the 12th October, 1942, upon the application of plaintiff and is in the following terms:- “Court agrees that having regard to the nature and importance of “this case Brief fee etc., should be allowed and directs that notice “should be served on the defendants and Court to be satisfied by some “sort of evidence as to the retainer agreed upon between plaintiff and “his counsel.”
The second Order was made after Fuad, .J. had left the Division, by Martindale, J., on the 31st October, 1942, and directed that items 3. 4 and 5 of plaintiff’s bill of costs should be allowed. These items are:-
“Item 3. Instructions to sue--5 guineas. “Item 4. Pleadings, etc.-50 guineas. “Item 5. Brief fee--300 guineas. Appearances-17 guineas.”
No objection to the amounts claimed was raised in the Court below or is sought to be raised in this Court, but defendants- appellants desire to appeal solely on questions of lay, namely, the jurisdiction of the Court below to make the orders.
The orders were made in pursuance of the Court’s powers and duties under rule 2 of Order 7 of Schedule 2 of the Supreme Court Rules, the relevant part of which, as amended by Rules No. 23 of 1942, reads as follows:-
“The Court shall determine the fees to be allowed to a party in “respect of the services of a legal practitioner for-
“(a) Instructions to sue or defend, which shall include consultations. “pleadings and preparation of brief;
“(b) Brief fee to cover all appearances in Court and attendances “at Judge’s chambers;
“ (c) Refresher fee (if any); “having due regard to the nature and importance of the cause or matter “(including its length and difficulty), the amount involved, the general “conduct of the proceedings and all other relevant circumstances. All “other questions relating to the amount of costs shall, unless summarily “determined by the Court, be referred to the Taxing Officer and, after “notice of taxation to the parties, be ascertained by him, subject to “the approval of the Court, ,without which approval no taxed bill of “costs shall constitute an enforceable demand.”
Counsel for the would-be appellants has placed before this Court at length his arguments upon the question of jurisdiction. In regard to the first order, the submission is that Fuad, .J. having given final judgment in the suit for the plaintiff with costs on the 1st October, 1942, was fauctus officio and had no jurisdiction to make the order of the 12th October, in other words the trial Judge must make the necessary order under the rule in question in his final judgment, and if he does not, do so, he loses jurisdiction to make it, and it cannot be made. I an1 unable to subscribe to this proposition. Nothing is said in the Rule as to the time at which the order shall be made, and though as a matter of convenience such an order will usually be made either in or immediately after the judgment, there must be cases where that would not be a convenient or even a possible course, and it would be absurd to hold that in such cases the Court’s power and duty are abrogated. I am of opinion that if the Court does not make the appropriate order either in or immediately after judgment it can be moved to do so by an application in the ordinary way. I think, however that such an application should not be heard ex parte, since the other party should have an opportunity of being heard before an order affecting his liability is made. Here although the application was made ex parte, the Judge very properly ordered notice to be served on the defendants.
In regard to the second Order the submission is that Martindale, J., had no Jurisdiction to make the order, which (If it could be made at all) could only he made by the trial Judge. This is seeking to put upon the expression “The Court” a meaning altogether different from that given in the interpretation , section of the Ordinance and indeed different from the meaning in which it is obviously used later in the same rule, seeking in fact to substitute for the words . The Court” the words” The Judge “ or “ the trial Judge.” Again as a matter of convenience, it will normally be the trial Judge who will make the necessary order, but, if for any reason, he is not available, it cannot, in my view, be the law that the duty imposed upon the “The Court “ by the rule shall not be carried out.
In my opinion an order under the rule now in question can be made by any Judge and not only by the trial Judge. For, these reasons I am of opinion that the application should be dismissed.
PETRIDES, C.J., GOLD COAST. I agree that the application should be dismissed. At. the trial the Court gave “judgment for the plaintiff with costs.” By the amendment to Order 7 rule 2 it. is provided that the Court shall determine the fees to be allowed to a party in respect of the services of a legal practitioner for certain matters. That amendment came into force by Government Gazette dated 4th April, 1942. The learned trial Judge omitted to determine the fees to be allowed as required by this rule, at the time he gave judgment for plaintiff with costs. When this was brought to his notice on an ex parte application he was about to proceed on leave. On the 12th October he made the ex parte order set forth in the judgment which has just been read. The trial Judge left Cape Coast on the 14th October and left Accra on leave on the 16th October. Seeing that the third defendant lives and practises at Sekondi it would obviously have been extremely difficult and inconvenient for him to dispose of the application before he left Cape Coast and ceased to be a Judge of the Central Division.
As Martindale, J., points out Order 7, rule 2 has placed the Court in the position of a taxing officer in regard to the fees specified in that order. The rule is mandatory and the fees have , to be determined by the Court. If the Court refuses to or abstains from determining the fees there can be no doubt that the Court can be required to determine the fees.
Now it is quite clear that there is nothing in the nature of the fees that have to be determined by the Court that could not be fixed by a Taxing Officer if the rule so permitted. The rule however requires the fees. to be determined by the Court. Although it is obviously convenient for the Judge who tried the case to determine the fees specified I can find nothing in the rule that requires that this shall be done by a Court constituted by the judge who tried the case. It is obvious that this could not be done if for instance this Court referred the case back to the Court below and ordered the fees to be determined if, in the meantime, the trial judge had permanently left the Colony.
GRAHAM PAUL, C.J., SIERRA LEONE. I concur with both the opinions which have just been expressed.
ORDER- The application is dismissed with costs assessed at £16 6s 6d.