Babadi Jalloh v Henry Beckley (CIV APP 12 of 1962) [1962] SLCA 50 (12 November 1962)

Even allowing for this erroneous consideration in assessing the damages and reducing them on that account, I cannot think that the high figure can have been due to that only and think that there must also be some other error in principle. I would allow the appeal and reduce the damages to £100, being £75 for assault and £25 for false imprisonment, which figures allow for the fact that the learned judge took a serious view of the incident. [COURT OF APPEAL) c. A.

SILLAH v. Mmwo. Ames Ag.P. Ftreetown Nov. 12, BABADI JALLOH Appellant 1962 HENRY BECKLEY (Police Sergeant 225) v. Ames Ag.P .• Respondent Bankole Jones Ag.C.J,. [Civil Appeal 12/62] Tort-Action against public officer-Public officer defended by Crown Law Officer Fees of court-Whether fees "payable by GQ.vemment "-Supreme Court Rules, Ord. 51. r. 2-Whether opposing party can raise issue of party's iaiJ.urt~ to pay fee. In September, 1961, appellant (a diamond dealer) sued respondent (a police sergeant) for conversion of two diamonds. On October 9, respondent entered an appearance, and notice thereof was given to appellant. The memorandum and notice were signed: "D. M. A. Macaulay, Acting Senior Crown Counsel and Solicitor for Defendant." The defence was signed and filed by D. M. A. Macaulay, "Acting Senior Crown Counsel, Crown Law Office, Bo." No fees were paid for the entry of appearance or for filing the defence. On March 29, 1962, plaintiff's solicitors took out a summons for an order that " the appearance entered and the defence filed be set aside for irregularity and be taken off the file on the ground that no fees have been paid for filing the said documents in breach of Order 51. r. 1. ... " Order 51, r. 1 (1), of the Supreme Court Rules provides : "The fees ... contained in Appendix B hereto are fixed and appointed to be and shall be taken in the court . . . and by any officer, paid wholly or partly out of the public moneys, who is attached to the court." Rule 2 provides: "No fees ... shall be taken in respect of any proceedings where such fee . . . would but for the provisions of this rule be payable by Government .... " The Supreme Court (Cole J.) held that the fees were "payable by Government " and, therefore, came within the exemption provided by rule

2. Held, dismissing the appeal, that the opposing party cannot challenge a proceeding on the ground that a party has not paid the correct court fee. The court (Ames Ag.P.) said, obiter, that the fees in the instant case did not come within the exemption provided by rule

2. Berthan Macaulay for the appellant. John H. Smythe (Acting Solicitor-General) for the respondent.

Dove-Edwin I.A. c. A.

JALLOH v. BECKLEY. Ames Aa.P. AMES Ao.P. In September, 1961, the appellant, who is a licensed diamond dealer, issued a writ against the respondent, who is a police sergeant, claiming for conversion of two diamond stones valued at £295. On October 9, 1961, the respondent entered an appearance and notice thereof was given to the appellant. The memorandum and the notice were signed "D. M. A. Macaulay, Acting Senior Crown Counsel and Solicitor for Defendant." Pleadings were then filed. It is not necessary to set them out. It is sufficient to say that the appellant averred that while on a visit to Bo, for the purpose of selling diamonds, he was arrested by the respondent, taken to the police station, and that his diamonds were taken away from him and that later two diamonds were no longer there and in their stead were two false stones. The defence denied all this and averred that the appellant " was invited to Bo Police Station for investigation " (what of is not mentioned), and that the diamonds and the two false stones which were returned to him were exactly those which had been "handed" by him to the police. The defence was signed and filed by D. M. A. Macaulay, "Acting Semor Crown Counsel, Crown Law Office, Bo." No fees were paid for the entry of appearance or for filing the defence. This fact had come to the notice of the solicitors for the plaintiff by March 3, 1962, and on that day they sent a registered letter to the solicitor for the defendant drawing his attention to the omissions. No reply was received and so on March 29 they took out a summons for an order that " the appearance entered and the defence filed be set aside for irregularity and be taken off the file on the ground that no fees have been paid for filing the said documents in breach of Order 51, r. 1. ... " The relevant part of that rule is: " 1. (i) The fees . . . contained in Appendix B hereto are fixed and appointed to be and shall be taken in the court ... and by any officer, paid wholly or partly out of the public moneys, who is attached to the court." This rule appears to be mandatory, and to be addressed to the officers of the court and to put the onus on them to collect and not on the litigant to pay . . The defendant pleaded that he was exempt under the next rule of that Order, of which the relevant part is: "

2. No fees . . . shall be taken in respect of any proceedings where such fee . . . would but for the provisions of this rule be payable by Government: ... " So the problem can be put like this. If a public officer is sued in tort, and the Crown Law Officers take up cudgels on his behalf and act as his solicitor, are the fees of court, which he would otherwise have had to pay, fees " payable by Government " within the meaning of rule 2? The learned judge who heard the summons held that they are. His reasons were (he is referring to rule 2) : "This rule, in my view, means that in any proceeding where the Govern ment is responsible for payment of the fees or percentages contained in Schedule B to the Supreme Court Rules or has either expressly or impliedly undertaken such obligation in respect of any proceeding then no such fees or percentages should be taken. The proviso to the rule does not, in my view, affect my interpretation. What is the evidence in support of this view? According to the appearance entered herein it is clearly shown that the

appearance was being entered for the defendant/ respondent by one of the lawful agents of the Attorney-General, who is the constitutional legal adviser to the Government of Sierra Leone ; namely, the then acting senior Crown counsel. It appears from this that the Government, through one of its constitutional agents, was thereby giving notice to the world, including the plaintiff/applicant, that it was taking over the conduct of the defence and a fortiori undertaking the obligation of payment of all fees required to be paid by the Supreme Court Rules in respect of the proceeding." With all respect I do not agree. Ordinarily fees are payable by the party to the litigation. If a defendant has a solicitor (not a Crown Law Officer) and the solicitor files a defence and hands over, as he must, the fee required by the cashier of the court (whether he does so as an advance to his client or in reduction of an amount deposited by the client with the solicitor for the costs of the litigation), is the solicitor giving notice to all the world and to the other party that he is taking over the defence and undertaking the obligation of payment of all fees? I think not. Solicitors are not under any legal obligation to pay the fees for a client who does not keep them supplied with the requisite funds. I see no reason why the rule should mean something different if the solicitor is a Crown Law Officer. I do not think that the wording of the rule is sufficiently wide to extend the exemption to a case such as this one. Ought, therefore, the appellant's summons to have succeeded? In my opinion, no, it ought not to have (as indeed it did not). It is admitted that it is the practice in the court not to collect fees in cases such as this, and that, no doubt, is why the cashier did not " take " any fee in this case. It seems to me to be a matter of court revenue and nothing more. I have already pointed out that the rule is directed to the officer of the court who " takes " the fees. If he takes the wrong fee, the party could not be penalised to the extent of having the proceeding set aside. Sometimes it is doubtful under which item of the Schedule a fee should be assessed. I have, in my day, when judge in a court of first instance, been consulted at times by the cashier or registrar as to the proper item under which to charge a fee. I mention this to indicate that the onus of seeing that the proper fee is paid is on the officer of the court, and the party must pay accordingly. I see no difference where the officer of the court decides that no fee is payable in the particular instance. It may be that a mistake or misinterpretation could be adjusted afterwards, or the matter brought before a judge by a party who thinks he is required to pay too much or too little. But I think that it certainly would be a great injustice to hold that a proceeding was of no effect and should be struck out at the instance of the opposite party where the party has paid what he was required to pay or paid nothing where he was required to pay nothing. I would dismiss this appeal. BANKOLE JoNES Ao.CJ. I also agree that this appeal should be dismissed for the reasons given above. DoVE-EDWIN J.A. I agree. It has always been my view that the type of fees referred to in this matter is one for the officer of the court. For the plaintiff to apply to have the appearance and defence filed set aside for irregularity is wrong. In my humble view it is nothing to do with him. I agree that this appeal be dismissed.

c. A.

JALLOH v. BECKLEY. Ames AK.P. F~eetown Nov. 14

Ames Ag.P. Dove-Edwin TAMBA S. M'BRIWA [COURT OF APPEAL] Petitioner I A ppel/ant v. R. l'i:iarke DUDU B. BONA P.J. Respondent I Respondent [Civil Appeal 21 /62] Election Petition-Service of notice of presentation of Petition-Servic~ on respondent's solicitor and agent-Notice of appointment of agent prepared by respondent's solicitor-Whether petitioner gave sufficient. "notice of the presenta/iQn of a petition "-Whether affidavit filed "immediately after" notice of presentation of petition-House of Representatives Election Peti1.i011 Rules (Laws of Sierra Leone, 1960, Vol. VI, p. 407), rr. 11, 12, 15, 16, 17, 19, 20- Electoral Provisions Act, 1962 (No. 14 of 1962). Petitioner filed an election petition on June 12, 1962. On June 22, respondent filed a notice of his appointment of an agent pursuant to rule 11 of the House of Representatives Election Petition Rules. The agent appointed was Mr. Khan, respondent's solicitor, who prepared the notice of appointment. On the same day, petitioner served on Mr. Khan's clerk a copy of the petition, a notice of motion for order for security for costs, a notice of appointment of petitioner's agent and the appointment of petitioner's agent. On June 28, petitioner filed a notice of motion for an order under rule 16 of the House of Representatives Election Petition Rules " that what has been done shall be considered sufficient service." On June 29, Mr. Khan filed a notice of his appointment as respondent's agent, and he also told petitioner's solicitor that he had accepted service of the petition and requested him to withdraw his application for an order under rule

16. On July 3, petitioner filed an affidavit stating that "the above-entitled petition and other papers connected therewith" had been served on Mr. Khan's clerk. On July 6, the application for an order under rule 16 was withdrawn. On the application of respondent, the Supreme Court (Bankole Jones Ag.C.J.) ordered that the petition be struck out on the ground that rules 15 and 19 of the House of Representatives Election Petition Rules had not been complied with. Petitioner appealed. Held, allowing the appeal, (1) that, in view of the fact that Mr. Khan prepared the notice of his appointment as respondent's agent which was filed on June 22, he could not be allowed to assert that he was not such agent on that day, even though his notice under rule 12 of the House of Representatives Election Petition Rules was not filed until June 29.

(2) That, in view of the fact that there is no prescribed form of notice under ru1e 15 and that "the rule no longer: fits the present shape of the law as to election petitions," petitioner's service of the documents which he served on respondent constituted sufficient compliance with rule 15; and

(3) That, in the circumstances of this case, petitioner complied with rule 19 by filing the affidavit of service on July

3. Case referred to: H. M. Kanagbo and others v. M. J. Kamanda Bongay, Sierra Leone Court of Appeal, July 27, 1962 (Civil Appeal 14162). John E. R. Candappa for the appellant. Zinenool L. Khan for the respondent.

AMES Ao.P. This is another appeal ansmg out of an election petition. The petition was struck out, on the application of the respondent, on the ground that rules 15 and 19 had not been complied with. Rule 15 is: " Notice of the presentation of a petition and of the nature of the pro posed security as hereafter provided for in rule 20, accompanied by a copy of the petition, shall be served by the petitioner on the respondent within ten days after such presentation, exclusive of the day of presentation." Two things have to be considered. When service was effected, and what was served. The petition was filed on June

12. So the ten days expired on the 22nd. On July 3, the petitioner filed an affidavit, the paragraphs of which read: "1. That I am a clerk in the office of Mr. J. E. R. Candappa, of 3, Trelawney Street, Freetown, solicitor for the petitioner. "2. That on June 22, 1962, I personally served on Yamba Koroma, clerk to Mr. Z. L. Khan, solicitor and agent for the respondent, the above-entitled petition and other papers connected therewith." The respondent filed a notice of his appointment of an agent, under rule 11, on that very day, the 22nd. The agent was Mr. Khan, the solicitor for the respondent. The notice which was filed was prepared in Mr. Khan's office, and is indorsed" Zinenool L. Khan, 23, Rawdon Street, Freetown, Solicitor and Agent for the Respondent." Mr. Khan did not file the notice of his appointment, required by rule 12, until June

29. Therefore, so he has argued before us, he was not the agent until the 29th, and, therefore, the service on the 22nd was of no effect, and service of the 22nd on his clerk can only reckon as service on the 29th, and so was out of time. Personal service on the respondent was not effected at any time. The argument might have had something in it if the respondent's notification under rule 11 of the appointment had been prepared and filed by the respondent without Mr. Khan's knowledge (in which case it may be doubted whether service on his clerk, even in time, would have been effective service). But can Mr. Khan be allowed to assert that he was not the agent on the 22nd when he himself wrote and filed the respondent's notification of his appointment and described himself on the indorsement as both solicitor and agent of the respondent? In my opinion, he cannot be heard to say so. The next thing to consider is what was served. The rule says "notice of presentation of the petition and of the nature of the proposed security " and a copy of the petition. The affidavit set out above said that "the above entitled petition and other papers connected therewith " were served. " Other papers connected therewith" is not self-explanatory, which the affidavit should have been. The petitioner's solicitor seems to have realised that, and on August 10 he filed another affidavit, explaining that what was served was a copy of the petition, notice of motion for order for security of costs, notice of appointment of petitioner's agent and the appointment of petitioner's agent. (Everything except the notice of presentation, one might say.) I think that rule 15 contemplates a document when it says "notice of presentation " but no form is prescribed. So it could be any form of docu ment which gives notice of presentation. It does not require the date of presentation to be stated, which I should have expected it or a prescribed form to do. The words " and of the nature of the proposed security as hereinafter

2 S.L.-12 C. A.

M'BRIWA v. BONA. c. A.

M'BRIWA

BONA. Ames Aa.P. provided for" mean nothing since the Electoral Provisions Act, 1962 (No. 14 of 1962). That Act makes other arrangements about security and revokes rule 20 by implication. Yet the Act provides in its section 62 (2) that until other rules are made (and none have been made) the previously existing rules shall apply "with any necessary modifications and adaptations." How is rule 15 to be modified and adapted to make sense now? The petitioner thought (apparently) it should be read as requiring that notice of motion for an order as to security should nowadays be served on the respondent. One must agree that that is sensible (and other petitioners have thought the same, so I find from other appeals which have come before this court). The question seems to me to boil down to this. Remembering that there is no prescribed form of notice, and that the rule no longer fits the present shape of the law as to election petitions, was it sufficient compliance with the rule to have served upon the respondent the documents which were served upon him? I think it may reasonably be so considered, and having said that I might add that it is to be hoped that the rule will be amended to make it less embarrassing to petitioners, the legal practitioners and the courts alike. I now come to rule