Thomas Hutton-mills V. Omanhene Kwaku Nkansah II & Ors (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Application for an order consequential to a previous judgment of the Court to the effect that a judgment of the Divisional Court should be varied by the order for costs in favour of Plaintiff-Respondent being set aside and judgment being entered for a less sum than that previously awarded—Plaintiff-Respondent refused to refund the difference and questions the power of the Court to make an order that he should do so.

Held : The Court has the power to make the order. Evans v. Main Colliery Co., Ltd., (1915) W.N. 10 ; 50 L.J.N.C.26 ; 138 L.Tjo., 163 ; 31 T.L.R. 127 followed. There is no need to set out the facts.

A . Ridehaigh (Crown Counsel) for Appellants. E. C. Quist for Respondent.

The following joint judgment was delivered :-

KINGDON, C.J., NIGERIA, PETRIDES, C.J.,- GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

In this action judgment was given in the Divisional Court for the Plaintiff-Respondent for £1,644 10s. and costs to be taxed. The costs were taxed at £73 18s. 6d. On appeal to this Court, inter alia, the judgment was varied by judgment being entered for the Plaintiff-Respondent against the Defendants-Appellants jointly and severally for £250 only and the order as to costs was set aside. The usual formal certificate was issued directing the Court below to carry out the judgment of this Court.

In pursuance of that certificate application was made to the Court below for an order that the Plaintiff-Respondent should repay to the Defendants-Appellants the sum of £1,394 10s. together with interest thereon from the 27th July 1939 to the date of payment at the rate of 4 per cent per annum and the sum of £73 18s. 6d. That application was refused on the ground that the certificate did not authorise the Court below to enforce the payment.

The Defendants-Appellants have not appealed against that refusal, but have come to this Court with the present application for an order consequential upon and /or supplemental to the judgment of this Court that the Plaintiff-Respondent do repay to the Defendants-Appellants the difference between £1,644 10s. and £250, namely, £1,394 10s. together with interest thereon from the 27th July 1939 to the date of payment at the rate of 4 per cent per annum and also the costs of £73 18s. Gd.

The Plaintiff-Respondent has questioned the power of this Court to make the order prayed. But it appears to us that we undoubtedly have the power.

The matter seems, on this point, to be on all fours with the case of Evans v. Main Colliery Co. Ltd. 31 T.L.R. 127. In that case, as in this, the successful Defendants-Appellants omitted to ask the Appeal Court at the time of judgment for an order that a sum of money which had been paid by them to the Plaintiff-Respondent under the judgment of the Court below should be repaid to them, and a subsequent application by the Defendants-Appellants that the order might he added to by providing that the sum paid should be returned was granted. We think that there is nothing in the argument of Counsel for the Plaintiff-Respondent that, because this Court has already issued a certificate directing the Court below ” to carry out “, this Court cannot make any additional order. The ratio decidendi in the Court below for the refusal to make the order prayed was that such an order was not included in that which it was directed to carry out. The inherent power of this Court to make an order adding to its previous order cannot be affected by the fact that it has already issued 😮 the Court below another order which does not include the order now prayed. Put in another way, the very argument upon which the Plaintiff-Respondent succeeded in getting the Court below to refuse the Defendants-Appellants’ prayer is an argument in favour of this Court’s power to make the order now prayed. On the merits the Defendants-Appellants are plainly entitled to the order they seek, save that we see no reason to award interest except from now onwards:

It is accordingly ordered that the Plaintiff-Respondent do repay to the Defendants-Appellants such sum (including any sum paid by way of costs), less £250, as the Defendants-Appellants may have paid to the Plaintiff-Respondent in pursuance of the judgment

of the Court below dated the 7th July, 1939, together with interest thereon from this date until the date of payment at the rate of 4 per cent per annum, and that the previous order of this Court dated the 24th February, 1940, shall be added to accordingly.

And it is further ordered that the Court below do carry out this order.

There will be no order as to costs on this application. The Defendants-Appellants are not entitled to any, as none would have been incurred if they had made the application at the time of judgment, and the Plaintiff-Respondent is not entitled to any as there were no good grounds for resisting the application.