Upon the first respondent failing to make payment to the appellant in satisfaction of the judgment, he then made an application in
terms of Order 54, rule 1, against the first respondent together with the second respondent who had stood surety for the first respondent.
In respect of that application Gyeke-Dako, J., made the Order Nisi as prayed on June 16, 1995; with June 30, 1995 as the return date.
On that day the matter came before Cotran, J., who refused the order sought. However when the matter came before the same Judge again
on July 28, 1995, the second respondent told the Court that he accepted responsibility and that he had issued three post-dated cheques
-dated August 31, September 30, and October 31 respectively - in satisfaction of the judgment debt. The appellant told the court
that he was accepting the cheques in satisfaction provided that they were honoured whenever they were presented for payment. The
learned Judge then made certain orders which he thought would finally bring the matter to an end.
However, on August 7, 1995, that is before the first cheque had matured, the appellant filed yet another application seeking an order
of rescission of the Order made by Gyeke-Dako J., on July 28, 1995. That application was heard on August 18, 1995. However on the
same date that the appellant filed his application, viz August 7, 1995, the second respondent sent a letter to the Registrar of the
High Court signed by Mr. Khan
3 requesting him to bring to the attention of the Judge seized of this matter his application to review the order of July 28, 1995,
and to amend the same accordingly. The Respondent did not send a copy of that letter to the appellant, but the Registrar sent a photocopy
of it with the minute of Cotran J. on it to him. In a reserved ruling on the appellant's application, Cotran, J., on September 7,
1995, held that it was misconceived and was for that reason dismissed. He made no mention of the second respondent's letter of August
7, 1995. He then made an order for costs on "attorney and client scale." It is against that Order that the appellant has
filed this appeal.
After the matter had been thoroughly argued before this court on January 23, 1997, we ordered that the appeal be allowed, and that
the order of costs be made one as between party and party; we also held that the appellant was entitled to the costs of this appeal.
We indicated that we would give our reasons later, and that is what we now do.
To begin with I would like to register my displeasure at the conduct of Mr. Rahim Khan in writing to the Registrar and asking him
to bring to the attention of the Judge his wish that the Judge should "review his order and amend it accordingly." Mr.
Khan knew or should have known that that was not the proper procedure for the achievement of what he was seeking to achieve. What
made the conduct more annoying to me was the failure of Mr. Khan to send a copy of his letter under reference to the other party
to the suit. It is, in my view, an elementary principle
4 of the administration of justice that no party to a dispute in court may be allowed to have an undue advantage over the other. How
Mr. Khan expected the learned Judge to accede to his request, even if it was one that could have been granted, behind the back of
the other party, baffled my imagination. I do hope that neither Mr. Khan nor any other legal practitioner in this country will tread the path he has trodden in this case and hope that nothing adverse will happen
to him.
Having disposed of that preliminary matter I will now go on to consider whether or not the Court a quo was right when it ordered costs
on attorney and client scale. The question of the scale of costs to be ordered is always at the discretion of the Court, but that
discretion must be judicially exercised. Once so exercised an appeal Court would have no right to review or overrule the exercise.
But the exercise must be based upon facts which are by themselves clear on the record or which are set down clearly by the court
a quo.
In this case there is nothing on the facts and circumstances upon which the order made could be said to have been properly made. And
the learned Judge said merely that "this application is misconceived and it is dismissed with costs on attorney and client scale
as prayed by the respondents." He has not stated any facts and circumstances which would justify the order which he has made.
Two basic principles must "always be remembered. The first is
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