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Samuel Barlatt V. Dimitri Yanni (1935) LJR-WACA

Samuel Barlatt V. Dimitri Yanni (1935)

LawGlobal Hub Judgment Report – West African Court of Appeal

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.AppealC. J. Kempson (C. E. Wright with him) for the Appellant.

The following judgment was deliveredSupreme

DEANE, C.J., GOLD COAST.mnirtof Sierra

In this matter Mr. Betts for the respondent has taken a Leone 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 L546 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 before the West African Court of Appeal in Sierra Leone. The plaintiff attached to his writ bills of costa 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 10s. 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. Od. which I hereby certify and allow this 15th day of December, 1933.”

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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 the 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 haF actually happened in this case. Not only is the order itself in

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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 in 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.

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BUTLER-LLOYD, J. I concur.

MACQUARRIE, J. I concur.

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