Conteh v Yayah & Another (CIV APP 36 of 1972) [1973] SLCA 4 (13 April 1973)

5 SECTION 37 THE AFRICAN LAW REPORTS ' CONTEH v. YAYAH and YAYAH Court of Appeal (Percy Davies and Tejan, JJ. A. and Rowland Harding, J.): April 13th, 1973 (Civil App. No. 36/72) [ 1] Civil Procedure-record-contents-all submissions made to magistrate should be carefully recorded: A magistrate's court is a court of record and all submissions made to a magistrate should be carefully recorded (page 301, lines 32-34). 10 [2] Courts-magistrates' courts-jurisdiction-civil jurisdiction-Workmen's compensation-magistrates may entertain claims of any size but awards limited to Lel,600: The effect of the Workmen's Compensation Act (cap. 219), s.6, as amended, which gives workmen the right to claim compensation up to Lel,600, and s.18 of the Act which states that the court shall determine all claims under the Act whatever may be 15 the amount involved, is that magistrates may entertain claims for com­ pensation of any amount but cannot award more than Le1,600 (page 299, lines 26-35). 20 [ 3] Courts-magistrates' courts-Tecord-contents-all submissions made to magistrate should be carefully recorded: See [1] above. [ 4] Employment-safety-claims under Workmen's Compensation Act (cap. 219)-magistrates may entertain claims of any size under Act but awards limited to Lel,600: See [2] above. [ 5] Statutes-interpretation-limitation of general provisions-general statute 25 does not affect special statute by implication-may alter it expressly or because inconsistent with its continued existence: It is a canon of con­ struction that a general statute does not affect a special statute by implication but only by express words or by being inconsistent with the continued existence of the special Act; and the Courts Act, 1965, which in general limits the civil jurisdiction of magistrates' courts to 30 Le600, does not therefore affect the special provisions of the Work­ men's Compensation Act (cap. 219) which confer additional jurisdiction upon those courts, so that they may entertain any claim under the Act whatever the amount involved (page 299, lines 14-22). The appellant brought an action in the Magistrate's Court, 35 Kabala, against the respondents to recover compensation under the Workmen's Compensation Act (cap. 219). The appellant was the widow of a deceased workman and brought an action for compensation under the Workmen's Com­ pensation Act (cap. 219) against the respondents, his former 40 employers. She claimed the sum of Le937 .90 but the magistrate · dismissed the application relying on s.7(1) of the Courts Act, 296 CONT~H v. YAYAH,1972-73 ALR S.L. 296 C.A. 1965 which limits the general jurisdiction of magistrates in civil matters to Le600. The magistrate also held that the application was not properly before the court but failed to record the sub­ missions made to him. On appeal to the High Court the appellant contended inter alia that the magistrate was wrong in law to hold that he had no jurisdiction to entertain the application. She relied upon s.18(2) of the Workmen's Compensation Act (cap. 219) which states that - "all claims for compensation ... shall be determined by the Court," and s.3(1) of the Act which defines "Court" to mean "Magistrate's Court." The High Court (Short, J.) upheld the decision of the magistrate and dismissed the appeal. On appeal to the Court of Appeal the appellant again con­ tended that ss.3 and 18 of the Workmen's Compensation Act (cap. 219) together specifically gave a magistrate's court juris­ diction to entertain a claim under the Act of any amount and that the general provisions of s.7 of the Courts Act, 1965 were therefore superseded, especially having regard to the fact that the Workmen's Compensation Act (cap. 219), s.6, as amended, gave workmen the right to claim compensation up to Le1,600. The court also considered the failure of the magistrate to record the details of submissions made to him. The appeal was allowed and the case remitted to a magistrate's court for retrial. Cases referred to: (1) Barker v. Edger, [1898] A.C. 748; (1898), 79 L.T. 151, applied. (2) Garnett v. Bradley (1878), 3 App. Cas. 944; 39 L.T. 261, applied. (3) Seward v. The Vera Cruz (1884), 10 App. Cas. 59; 52 L.T. 474, applied. Legislation construed: Workmen's Compensation Act (Laws of Sierra Leone, 1960, cap. 219), s.6, as amended: The relevant terms of this section are set out at page 299, lines 23-31. s.14: The relevant terms of this section are set out at page 298; lines 16-26. s.18: The relevant terms of this section are set out at page 298, line 31 - page 299, line 2. Courts Act, 1965 (No. 31 of 1965), s.7(1): "In addition to any civil jurisdiction which may be conferred upon Magistrates' Courts by any other enactment every such Court shall have jurisdiction to hear and determine any cause ... wherein the claim ... does not exceed six hundred leones in value .... " 297 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS Michael for the appellant; C.N. Rogers-Wright for the respondents. PERCY DAVIES J.A., delivering the judgment of the court: The Workmen's Compensation Act under which this matter is 5 brought is a special Act enacted to give statutory effect to certain international conventions regarding workmen's compensation and to remedy certain defects in the old law. I shall hereinafter refer to the Workmen's Compensation Act as "the Act." The Act provides that if in any employment personal injury by 10 accident arising out of and in the course of the employment is caused to a workman, his employer shall be liable to pay com­ pensation in accordance with the provisions of the Act. Section 14 of the Act lays down the requirements as to the giving of notice of the accident by or on behalf of the workman. 15 It is, however, specifically provided that - "the want of, or any defect or inaccuracy in, such notice shall not be a bar to the maintenance of such proceedings if the employer is proved to have had knowledge of the accident from any other source at or about the time of the acci- 20 dent .... " Also- "the failure to make an application within the period ... specified [in the Act] shall not be a bar to the maintenance of such proceedings if it is found that the failure was 25 occasioned by mistake, absence from Sierra Leone or other reasonable cause." In short, notice or no notice, proceedings for the recovery of com­ pensation under the Act shall be maintainable if it is proved that the employer had knowledge. 30 Section 18 of the Act provides that - "if an employer on whom notice of the accident has been served ... does not within twenty-one days after the receipt of the notice agree in writing with the workman as to the amount of compensation to be paid, the workman may ... 35 make an application for enforcing his claim to compensation to the Court having jurisdiction in the district in which the accident giving rise to the claim occurred." [Emphasis supplied.] . The section goes on to provide that - "all claims for compensa- 40 under the provisions of this Act, unless determined by agreement, and any matter arising out of proceedings thereunder shall be 298 CONTEH u. YAYAH,1972-73 ALR S.L. 296 C.A. determined by the Court whatever may be the amount in­ volved . ... " [Emphasis supplied.] The interpretation clause (i.e. s.3) of the Act defines "Court" as meaning a magistrate's court. The words "the Court having jurisdiction in the district in which the accident giving rise to the 5 claim occurred" mean what they say, i.e. the magistrate's court of the district where the accident occurred, so that if the accident occurred in Kabala the Magistrate's Court, Kabala is the competent court to deal with the matter. Section 21 of the Act provides for the jurisdiction of the court. 10 It says - "the Court shall ... have all the powers and jurisdiction exercisable by a Magistrate's Court in or in connection with civil actions in such Court .... " The civil jurisdiction of a magistrate's court is conferred by s. 7 of the Courts Act, 1965. It follows therefore that the Act is a special Act conferring a special juris- 15 diction on a magistrate's court in addition to the general juris­ diction conferred by the Courts Act, 1965. It is a canon of construction that a general statute does not by implication affect a special statute (Seward v. The Vera Cruz (3)). But the general statute may expressly do so (Barker v. Edger 20 (1)) or may be in terms inconsistent with the continued existence of the special Act (Garnett v. Bradley (2)). Section 6 of the Act allows a claim up to Le1400. Incidentally, this section has been repealed and replaced by the Workmen's Compensation (Amendment) Act, 1969 which gives the workman 25 a right to claim compensation up to the sum of Le1600. It is now necessary to contrast s.6 with s.18 of the Act. Section 18 says that all claims for compensation under the provisions of the Act shall be determined by the Court (i.e. a magistrate's court) whatever may be the amount involved. Section 6 says a magistrate can allow 30 a claim up to Le1600. All sections 6 and 18 are saying is that even though a magistrate may determine all claims for compensation whatever the amount, he cannot award more than Le1600. Any claimant, therefore, who wants to get more than Le1600 has his remedy to which, if he so desires, he may address himself. 3 5 I now come to the facts of the matter before this court. At p .1 of the records there is a civil summons in which the plaintiff (appellant in this court) claims the sum of Le937.90 from the defendants (respondents in this court). The summons is signed by L.E.K. Daramy, Magistrate, and is dated August 15th, 1972. On 40 the same date i.e. August 15th, 1972, a notice of motion was 299 THE AFRICAN LAW REPORTS ,< filed seeking to enforce the appellant's claim to compensation. This motion was supported by an affidavit sworn to by Marie Saio Conteh, the lawful widow of Saio Conteh the deceased workman. At p.5 of the records, an application for enforcing the 5 claim to compensation is filed by E .L. Michael, agent and solicitor for Marie Saio Conteh, widow of the deceased workman Saio Conteh. On August 18th, 1972, the motion was heard by the magistrate, L.E.K. Daram.y. In his ruling, the learned magistrate stated as follows: 10 " ... [L] earned counsel for the applicant opened his case and stated that he wished to put the applicant in the witness box and that the court should accept the affidavit as read. Mr. A.B. Kamara, learned counsel for the respondent, replied that learned counsel for the applicant had asked the 15 court to take the affidavit as read. That learned counsel could not properly ask the court to take the affidavit as read, because the procedure adopted by him, that is, proceeding by motion supported by an affidavit has no legal basis. Learned counsel for the applicant, Mr. E.L. Michael, 20 replied that the case was properly before the court; Mr. Michael referred to authorities." Later in his ruling, the learned trial magistrate dismissed the appli­ cation relying on s. 7 (1) of the Courts Act, 1965 which prescribes the general jurisdiction of magistrates in civil matters and limits it 25 to Le600 in value whether on balance of account or otherwise. From the decision of the learned trial magistrate the plaintiff appealed to the appellate judge, High Court, on two grounds, viz: "(i) The learned magistrate was wrong in law to say this court has no jurisdiction to entertain this application 30 when the Workmen's Compensation Act (cap. 219), s.18(2) states as follows: 'All claims for compensa­ tion ... shall be determined by the Court .... ' Section 3(1) of the Act defines court to mean magistrate's court. 35 (ii) The learned trial magistrate erred in law in holding that the application before the court is improper and at the same time failing to put forward what form he considers proper." The appeal was heard by Short, J. who upheld the decision of the 40 learned trial magistrate and dismissed the appeal. From this decision the appellant has appealed to this court on two grounds, viz: 300 CONTEH v. YAYAH,l972-73 ALR S.L. 296 C.A. ---. (i) The learned appellate judge erred in law in confirming the<·'~,o:_ -:~;-_,_ I -.~. ,:~'to .. -. . '··' " ruling of the magistrate. i ,J L: ;< ::: 1--~ •• ·: \ (ii) The learned appellate judge obviously disregarded ss.3 anh- · \J-·.:;·:/' .~f 18 of the Workmen's Compensation Act (cap. 219) when he(;::-~:>·~::-~// arrived at the erroneous conclusion that the magistrate's court '·<:- 5>· had no jurisdiction to entertain the claim for Le937 .90. At the hearing, Mr. Rogers~Wright for the respondents was chivalrous enough to inform the court that after a careful study of the record, he could not in all conscience support either the ruling of the learned trial magistrate or the judgment of the 10 appellate judge. The matter should have ended there but since the panel of judges of the appeal court could not be unanimous that the matter should terminate there, the court called on Mr. Michael for the appellant to argue his appeal. Mr. Rogers-Wright at this juncture asked the leave of the court to retire, which was 15 granted. I must congratulate Mr. Rogers-Wright for this excellent professional gesture. I have always held the view that the function of counsel in court is to assist the court in arriving at the correct decision. I shall now deal with the first ground of appeal. The incon- 20 sistencies in the proceedings before the learned trial magistrate are so varied and patent that, in my judgment, the learned appel~ late judge erred in law in confirming the ruling of the magistrate's court. [The learned Justice of Appeal then repeated the passage from 25 the ruling of the trial magistrate already quoted, and continued:] Even though the learned magistrate himself stated that Mr. Michael quoted authorities to support his submissions, no record is made of the authorities cited. I strongly suspect that the learned trial magistrate did not read the authorities cited because no mention 30 is made of any of the authorities in his ruling and above all no record is made of them so that this court could read them. This omission is fatal. A magistrate's court is a court of record and magistrates should carefully record submissions made to them. Again in his ruling, the learned magistrate wrote: 35 "The prescribed form and manner is under O.III, rr.1, 2 & 3 of the Magistrates' Courts Rules. This application has not complied with O.III, rr.l, 2, & 3 of the Magistrates' Courts Rules." Order III, rr.1, 2, and 3 referred to by the learned magistrate deal 40 with (a) summons and particulars (b) preparation of summons, 301 THE AFRICAN LAW REPORTS and (c) signature and issue of summons. From the above excerpt I understand the learned magistrate to be saying the appellant should have proceeded by summons and not by motion. In the file, as I have already indicated, there is a summons issued by 5 the plaintiff (appellant in this court) against the defendants (respondents in this court) signed by the magistrate who was the trial magistrate, Mr. L.E.K. Daramy. When once a summons has been filed, if it becomes necessary to clarify a preliminary point, the applicant proceeds by motion supported by an affidavit. I 10 cannot now understand what the learned trial magi.strate means by "this application has not complied with O.III, rr.1, 2 and 3 of the Magistrates' Courts Rules.'' I now come to ground 2 of the grounds of appeal. I have already dealt with s.18 of the Act above. All I need say now is 15 that the section provides that all claims for compensation under the Act unless determined by agreement and any matter arising out of proceedings thereunder shall be determined by the court whatever may be the amount involved. I therefore hold that the appellate judge disregarded ss.3 and 18 20 of the Act when he arrived at the erroneous conclusion that the magistrate's court had no jurisdiction to entertain the claim for Le937.90. The result is, I allow that appeal and set aside the ruling of the trial magistrate and the judgment of the appellate judge. I order 25 that the Magistrate in Bo District do try the appellant's claim. Order accordingly. 30 35 40 302