Albert Genet & Fritz Schumacher & Alfred Straumann [1923] SLCA 4 (9 February 1923)

9tkF<bruary, 1923. 11 (j - J.ppellant. 'II. FRITZ SCHUMACHER & ALFRED STRA "C')IA:X:X Leare to a]Jpe(l/ fo Pripy C'ounf'il ns of ?'ight- .lz>pointment of a new .Judge Constitution of the Court-Effect of death or ill11C$S of l1td,ge-CtMts. The facts of this case are sufficiently set fol'th in the judgment. Application for leave to appeal to ITis 1hjesty in Council from a judgment of the Full Court of the Colony of Sierra Leone. Sawyerr for the Appellant. TT11·ight for the Respondents. :McDONNELL, Acting ,J. The present sitting of the Fnll Court began on Thursday, January 18th, l !>23. The Court was constituted by the Chief JustiC'e of this Colony, Sir Gilbert Purcell, as President, the Judge of the Colony of the Gambia (Mr . . Justice Sawrey -Cookson), and m~1sdf, the Attorney -General of this Colon~-. who had been nppointPcl, as at the two previous sittings of the Court, to act as Puisne Judge by Letters Patent under the Public Seal of the Colony . See sections 4 and 5 of Ordinance X o. 14 of 1912, Vol. Y _, p. 2,032, section 2 of Ordinance X o. !) of 1915.1 Among the appeals whjrh eame before us for hearing was the present case of Genet L'- Sehumm·hH and another, in which :Mr. Shorunkeh Sawyen appeared for ihe Appellant and Mr. Claude ·wright for the Hespondents. On n preliminary point being taken on Thursday, January 25th, by Respondents' C'oun,;el, the Full Court announced orally that it must on that ground dismiss the appeal, and stated 1hat it would deli>er a considered judgment on Uonday, January 29th . 1 See page 113. 1 New Cap. 205, sec. 62, Vol. II, p. 1429. 117 On that day a juugmeut was deli>ered by me, to which the learned President ns..;ente<l. l£:~ brother, ~nwrey-Cookson, delivered a short judgment concurring with my ;iew. Thereupon :Mr. Shorunkeh Rawyerr stated thnt lH' proposed to appeal from the judgment to tl1e Priv:· Council, and indicated that under section 4 of the Order o£ His :Majesty tl1e King in Council dated 15th l~ebrnary, 1909,1 governing appeals to the Privy Council, he had fourteen days in which to apply by motion or petition for conditional leave to appeal. It was pointed oul to ~fr. Sawyerr that the presence of my brother Cookson wa:- urgently needed in his ~ourt in the Colony of the Gambia several hmH1red miles from this Colony, that a ship for that place (the R.R. " Bodnant ") was sailing in the course of four or five days. and that if Cookson, J., were to miss that ship his return would in all probability he delayed at least two weeks. It was agreed by both parties that the matter in dispute on the appeal amounted to upwards of the value of £300 sterling. The Court thereupon pointed out to Mr. Sawyerr that, unaer section 2a of the above cited Order of the King in Council (Vol. IV., p 1844)/ he could appeal as of right; and that his applica­ tion would be purely formal, and he was asked if, in conse­ (1 uence, he would not expedite his application, short notice of which ~Ir. Wright, for the Respondents, expressed himself pre­ pared to accept. In spite o£ this rc!1uest and assurance, }Jr. Rawycr expressed his inability to accelerate his application, and the Court adjourned until the return day of the petition which he announced it was his intention to file. On Friday. the 2nd Jt'ehruary, lfr. Sawyerr filed a petition, supported by un affidavit, and a notice to move the Full Court for conditional leave to appeal at 9 a.m. on Wednes­ da~·. 7th February. In iht· meanwhile, the learned President, in con;;ultation with lllY hroth(•r Cookson and myseli, came to the conclusion, in which we both concurred, that if Cookson, J·., sailed by the S.S . " Bodnant," which was leaving on the fol­ lowing c.lay, a Full Court for the purpose of hNtring this purely formal application <·ould be constituted, provided that His ~fajesty appro>ecl the appointment of the Police Magistrate of Freetown, )fr. 1Yilliam Rutler Lloyd, Barrister-at-Law, as a Puisne Judge for the purpose in question. 1 Now Vol. ill, p. 767. GENET v. ScalilL\CllER & STRAUMA~S . ~CDO!I~"TLI., ACTIXO J. GEl(ET II. Sc.IIUM.\CHER & STRAO'li'ANN. MODONSELL, ACTINO J . 118 In conformity with this decision, llis Excellency the Uovernor was invited, and agreed, to send the following telegram to the Right Honourable the Secretary of State, which, with its reply, His Excellency huo gi,en me permission to quote in this judgment:- " From Governor. " 1'o Secretary of State. " Date ht l!'ebruary, 192;3. · · " •ith reference to your telegram of 9th January sit­ .. ling of the .l!'~ ull Court concluded except one outstanding "application for leaYe appeal Privy Council. Applicant " has 14 days in whirh move Court. Return of Cookson " Gambia urg-ently r<'qnired. I propose to release him " and with your approval and His Majesty's instructions " appoint ]Jutler Lloyd third Judge for purpose of hearing "ihe application . Vide section 4 Ordinance No. 14 of " 1912.1 " Slater ." Cookson, ,J ., consequently sailed on the S.S . " Bodnant" on Saturday, 3nl }l'ebt·uary. On ~fonda)', 5th February, the following telegram was recei>ed by His Excellency. " From Secretary of State . '' To Go, ern or. " Date 5th February, 1923. " \Yith reference to your telegram of 1st February, His " )fajesty is pleased to approve appointment of Butler Lloyd " to be Acting Puisne Judge. " Secretary of State ." I n conformitv with this instrurtion, Letters Patent under the Great Seal of the Colony were executed on Tuesday, February Gth, by His Exrellency appointing 1fr. Rutler Lloyd a Puisne Judge. :Mr. Lloyd on the same day took the oath of Allegiance and the Judicial Oath before His Excellency, who simultaneously addressed a letter to the learned Chief Justice in compliance with section 10 of the Supreme Court Amendment Ordinance, 1912 (Xo. 14 of 1912, Vol. V., p. 203~) 1 givinp: approval to his requesting Butler Llo~·d, J.'s, attendance at tl1e sitting o£ the Court. On the Chief Justice's request, Butler Lloyd, J., attended at 9 a.m . on Wednesday. 7th February, the return day of Mr. 1 ~ow Cap. 205, sec. 62, Vol. II, p. 1129. 2 Now Cap. 205, sec. 91, Vol. II, p. 1437. 119 GENET v. Sawyerr's petition, and the Court which sat was constituted by the Chief Justice, Butler !Jloyd, .J., and myself. Mr. Sawyerr immediately objected to the constitution of the Court, emphatieally demanded the presence of Cookson, J. lle refused to address the Court, but stated he was addressing the Uhief Justice alone . Sm.rUMAOtrER & STRAlrnA!\'N . 'l'he latter assured hiw that the Court was properly con­ stituted. Mr. Sawyerr pen>isted that the onl~· C'ourl which could ha'e cognisance of his appli<·ntion was one which was con­ stituted exactly as was that against whose j·utlgment he was appealing. He then stated in con1·lusion that the Court before him was neither the Full C'omt n >r the Supreme Court, and refused to proceed wiih his application, stating that he would apply direct to the Pri>y Council for leln-e to appeal to that tribuna l. 'l'he Cout·t then adjo11l'ned until to-day, in order that a considered judgment in the matter, setting out the whole facts might he prepared. I am of opinion that there i:.; no groun!l in )Ir. Sawyerr's objectio n. The application before the Court was entirely formal, in­ >olving no question as to the merits of the appeal, and was in no sense a continuation of the hearing, judgments in which had been delivered on J anua1·y 29th. The Court had no discretion to grant or refuse lea>e to appeal: its power was confined merely to settling the security to be giYen, the time in which such security was to be given, and the conditions, i£ any, as to the time within which the Appellant should take the necessary steps for the purpose of procuring the preparation of the record and despat ch thereof to England under sections 5 (a) and (b) of the Order of the King in Council.l If there were anythi11g in )fr. Sawyerr's objectio n, the illn ess of one of the .Judges of the Full C'ourt for fourteen days after the judg-ment appealed from, or the death of such Judge in that period, would effectually stop any leave to appeal being granted by the Full Court. Dy liis withdrawal of his application )fr. Sa.wyerr has de­ prived his client-who, I learn from paragraph 3 of the affidavit, is absent from the Colony-of the right of appeal, except by tne far more expensi'e process of going to the Privy Council direct, a right saved hy section 28 of the Order of the King in Council. 2 t Vol. ill, p. 76i. 1 Vol.:III, p. 771. )ICDO:SJO."J:LL, JlOTI:SO J. C'ENET v. fiVlii'MACHER & ~THAU.\IAJ.'IN . 120 'rhe application not having been pursued must be taken to have been abandoned. It seems to me that the frivolous nature of Mr. Sawyerr's objection brings it rlangerously near those cases in which the Court has to order the Solicitor to pay the costs, but in all the circumstances I hold that the costs entailed by to-day's proceedings and those of Wednesday, February 7th. should be borne by the Appellant. BUTLER LLOYD, Acting J. I agree. PlTTIOELL, C.J. r agree.