K. A. Taylor V. W. Ward Brew & Ors (1942)

LawGlobal Hub Judgment Report – West African Court of Appeal

Order as to costs—Ex parte order made after final judgment—Jurisdiction of a judge, other than the trial judge, to make the order.

Facts

At the trial the Court gave judgment for the plaintiff with costs. The Judge overlooked the provisions of Order 7 Rule 2 as to the fees to be allowed in respect of legal practitioner. Twelve days later upon the application of the plaintiff the Judge made an order ” ex parte ” directing that evidence be given to the Court as to the agreed retainer between plaintiff and counsel and directed that notice of this order be sent to the defendants.

Before the date appointed for the hearing the Judge proceeded on leave. Another Judge then made an order on the 31st October, 1942.

It is argued that when the trial Judge made the order after the determination of the trial he was funetits officio and that being made without jurisdiction it is void and of no effect. Alternatively it was argued that if the trial Judge had jurisdiction to make the ” ex parte ” order on the 12th October, then any subsequent order could only be made by the trial Judge and not by another.

Held

The trial judge had jurisdiction to make the ” ex parte ” order. Held further that Martindale, J. the later Judge, had jurisdiction to make the final older as to costs.

The application is dismissed with costs assessed at £16 6s 6d.