Albert Genet & Fritz Schumacher & Alfred Straumann [1923] SLCA 5 (9 February 1923)

113 ALBER1' U E~ Wr - Appellant. 1/. FRITZ 8CII1Tl\fACIIEI-t & ALFRED S1'RA U)!ANN - Respondents . A pplicalion for conditional leave made more than three month.~ after decision-Costs. The facts of this l·ase are sufficiently set out in the judgments . . \ppeal from a judgment of Purcell, C.J., in the Sup:t:eme Court of the Colony of Sierra Leone. Sawyerr for the Appellant. Wright for the ReRpondents. ~IcDOX~ELJ,. Acting ,J. In this appeal, )!r. 'Vright, for Respondents, raised a pre­ liminary objection to the effect that the application made to the lower Court for conditional lea"'e was out of time, as, although notice of motion was filed within three months from the date of the decision, the elate on which the notice stated the Court would be moved and the date on which the Court actually was moved, were more than three months after the date of the decision. It appears from thC' record that 1Ir. 'Wright, on the appli­ ration for conditional lenve on June 16th, 1922, " objected that )!r. Sawyerr was late "; tbe record goes on, " he did not waive " the point, but would rai!'e it in the Court of Appeal." No decision on the point was given by the lower Court. Mr. Sawyerr, at the pre!'ent hearing, asked that this part of the rec01·d o£ appeal should be expunged as not being included in the record of appeal as specified in section 5 of the Schedule to Ordinance No. 14 of 19121 . This the Full Court refused to do, and proceeded to consider }!r. Wright's objection. In sections 7, 8 nnd 9z of the schedule, the words " applica ­ " tion for leave to appeal " are employed, and the proviso to 9 states that i£ no Ritting of the Full Court occurs within six months of the decision, and a notice to move that Court is given 1 Now Ca.p. 205, Schcdul~>, sec. 5, Vol. II, p. 1438. 2 .Now Cap. 205, Schedule, sees. 7, 8 & 9, Vel. II, p. 1439. 9th F(!,rw.ru, I!J:!:J. GEN'BT v. SCRUMA.OHli:R & Snu.uMANN, ){CDO!fl>"lo:I.t, ACTINO J. 114 within six months, that motion may be dealt with at the next sitting of the Court. The effect of a ptovi so, according to the ordinary rules of construction, is to qualify something enacted in the preceding part of the enactment, and it is only on the assumption that " application for leave " means something quite different from " notice to move," that this proviso can be given any meaning at all. If the two things mean the same thing, there is no point in making special provision for times when the Full Court is not sitting, for notice to move it can be £led at any time, and the proviso is then mere surplusage, an interpretation in conftict with the settled canon of construction enunciated in Queen v. Bishop of Oxford (1879), 4 Queen's Bench Division, at page 261, per Cockburn, C.J. , "that a statute ought to be so construed that if " it can be prevented, no clause, sentence or word shall be super­ " ftuous, void or insigni£cant." It is true that section 5 speaks of "filing an application " for £nal leave," but the fact that this is so does not, I hold, affect the only interpretation of section 9, which makes the whole enactment, proviso and all, intelligible. I asked Mr. Sawyerr, for Appellant, in the course of the argument, to consider section 29 of the Schedu le1 • It seems clear from the record that, although no decision was given in the lower Court on the point of law as to time, yet there was no £na l direc­ tion by the Supreme Court that judgment should be entered provisionally, subject to a point of law which it reserved for further argument or consideration in the sense contemplated by section 29. Finding himself faced with this point in the lower Court, the Appellant could have abandoned his application for con­ uitional leave there, and, being within time, could have come to the Full Court for special leave. His failure to do that seems to dispose of any argument as to costs. In my opinion, therefore, the appeal must, on Mr. Wright's preliminary objection, be dismissed, with costs. PURCELL, C.J. I agree. 1 Now Cap. 205, Schedule, sec. 29, Vol. II, p. 1441. 115 SA-n~REY-COOKSON, J. I agree, and desire to aJcl only a few words on the question of co::-.b. .\t the eout Im.ion ot arguu1ent:- of (ounsel in the C'ase of Genet v. Schumacher, the learned Cl1ief J u::.tice intimated that the Court were unanimous in the >iew that .:llr. Wright had sustained his preliminary objection to this Coul't, entertain­ ing the appeal, and that the 1·easons for that conclusion would be given in a judgment to be dcli>ered to-day with the other judgments reserwd. TherNlpou, on )Jr. Wright asking for his costs, ~Ir. Sawyerr objected on the ground that, although this Court had upheld his (Wright's) preliminary objection, it was still open to him to apply 1 o thi:; Court for speeial lea>e to appeal, and that it was, therefore, premature at this stage to gi>e )Jr. Wright his costs . Mr. Sa-w>err took more than one point, but mainh· omitted I think, to appreciate the all-illlJ)Ortant fact that it was: or should have been, perfectl~· clearly under~tood by him that :llr. 'Wright had deliberate}y before the lower Court stated that he did not . ' wai>e the preliminary objection, to be taken as to the power of that Coul't to entertain thi,; appeal. hut. on the contrarY. intended to take the objection before this Court. · That being so, :Mr. Sawyerr had the cour<:e clearly open to him to abandon his claim to final right to appeal, and to ha>e applie d for special lea>e to appeal. That course he did not take, so that it is verv difficult to under,.,tand what >nlid ohjertion he <'an ha>c to )Jr . \Tright being allowed his ro:;ts. )[,·. "\\ri!.dtt', ohje<'tion. h: cl it been argued before the Iearnel Chief .Justice. woultl prec:umablY (in Yiew of the unanimity of thi.;; Court) then have been upheld; but it was clearly left for thi:> Court to uphold or o>errule, and if it ~hould uphold it, so to dispose of the whole matter in lfr. Wri£rht's favour . It is difficult to concei~e of a case in which the~ dis­ cretio n of the Court in «uch matters should more properly or rea ·onably be exerci~cd in a succps,;fu] litigant's favour. GENET v. SCliU'MAcm:a & STILUJlU..'ffl.