Dunstant E. John & Another v William Stafford & Others (CIV APP 1 of 1975) [1976] SLSC 15 (13 July 1976)

tl ; AM. Tis suviuelie cout ov sienna Lions ©.0.8. coLz, Chicf Justice (Presiding) 8.0.1. naTTs, Justice of the Suprewe Court . LUVeSBY UK, Juotice of the Supreme Court A.V. ANUNOR-RBHNER, Justice of Appeal S.0.8. WARNE, Justice of Appeal Civii Appeat No.1/75 DUNSTANT 2, JOIN & ABUBEN L, MACAULEY - Plaintiffs/Appellants ana VILLIAH STAFFORD, ALFRED GeoRGE NATHANIEL, COLE & JOHN EDDIE TAYLOR = Derendants/ttespondento— Jupeuent tym suny, 1976 Jal, Guythe, Boas QeCey vA him Hrs. I. almed for the appeliayte A.J, Dishop-Gooding, Zsq., with him > 6.3, otts, Eaq.y for the respondents : DEPTS, J.8.C.1- On iw 21st January, 1975, the Court of Appeal delivered J.adgnent diomissing an appeal from tho High Court, Judguent of vhich Court was datod the Gin Decenter, 1973+ The pith of that Judgment vas that the case of the plaintafts/appelients was based on auch uureLinble foundation that 4¢ would be unsafe to mike the declaration and orders sought. ‘the Court of Appool in aftirming that Judgment soid inter alia - : othe vartous authorities o4 ted borer hin’. (the eamiod eriat Shdge) "wore reviewed Uy him and inn Snde tothe pigs dosteton an i ‘entasing the agin as the burden

of proof cast on the plaintifrs/

appellants was never discharged

by" them."

LL ie against the judgment tat the followin c “ Grounds of appeal were Lodged.

(i) The Court of Appeal is wrong in law in upholding the judguent of the High Court with reference to that Court's rejection of the evidence of the 4th Defence Mitness tir, Hefwen vho had tendered tx. W because it was prepared while the ease was in progress.

(41) that the Court of Appeal as vas constituted was ultra vires the Constitution in that one of the f Judges the Honourable Justice —~d. Ken, 0, During, J.A, who heard sal the appeal had given a ruling inthe matter tn the Iligh Court. -

(441) that the Court of Appoat vas wrong in law tn upholding the Jindgnont of” tu igh Coue wien 7 reference to the ruling of ~ Hcnourable Fen. During dated iX 27th April, 1972, refusing an L application to strike out the “efence of the 1st and 3rd defendants on the grounds. that they violated the rules, principlos ‘and practice of pleading.

(iv) ‘Tat having regard to the evidence and the lav applicable the Judgment is unsatisfactory.

(v) The Court of Appear was wrong in tav and acted contrary to all known principles of lay and. practice in merely accepting the Findings of the trial Judge. without even attempting to review the law sind the fates

For the purposes of this appeal counsel for the plaintiffs/appellants notified the Court that he vas not arguing grounds 2 and

3. The grounds on viieh he was basing his arguments were 1, 4 and

5. These ho proposed to deal with under five heads. herore arguments started hovever counsel for the defendants/respoudents applied for an ‘amendment to his case. Lot me dispose of 4t at thie point. 5

He Ive the attention of the ourt to the fact Lunt consistantly caunses fos tie ntadabizcs as plajatiffa/ametianta in bie hp? Gourt and ia ths Jouet of hngead elenvoured to odtain the rejection yy the Gourts af Sx. Wand that in Uke Susreme, Soure counsel fe the save parties Sas adopted a complete! astrereat Line of avsronch by Snviting the Court to conaidor ox = a stan of tne entire area ineduding (ie portion allegedly Lrespasied, Je argued, that if (als approach is conceded then this Zourt might ve calle! upon to assess and evaluate fresh antlers, Té nupport Wis argument he cited the case of: EXPARTE Stes ae ytumt (1877) 5 oh. £60025. and MOTH OMEPO IULIs ve L3S2 (1920) 4.2, 25" gE 7.269. Ja the "I 5097548" ease, the situation was eqeivacn) aud at Uw hearing £6 vas the fraudulent conduct of the plaintife that ve mare strongly ure » than that af the defendant, This vas not m defence in the opinion of the Thief Judge but @ ney caso being set up. iL Ag A question of vito had behaved fraudulently and to “hon. ven if it is concéilod that ox. Wo= my extibit could lave some bearing «nthe case = st vas not of such m nature Bs te affect its basic ciaracter. In that ease "LI! /.s0TSH" and the subject moster ennnot be compared. In the ‘ease of HORT! STAPPORDGIURS already oitod T imuld queto < portien of Lord Birkenhead's judgmant and then ‘ike « further Alalinction Letweon wiat oan be grthered from Jt eu tue submission of comers "Tue appotiata ayatem in’ thin enuntry in conuctod In relation taceertaln well kom prinesplon and familar motheds. ‘The Laauen ef frets end live inne erally pregented hy vounsel. I tho raurae of hie argument Lt 40 (he invariaile practice of appeltate

tritunals to require that the dulguonta of the Judges in the Courts velow shail be read. The efficiency and authority of the Court of Appeal and, especially of the final Court of Appeal, are inereased and stronglhened by the opinions of Learned Jjuiges who Imve considerod thea mattors below. To acquiesce in auch an attempt as the appollanta havo made in this caso is in affect to undertake decisions which may de of the highest importance without having received any assistance at all from the Judgos in the Courts below." From observations on ths conduct of this case the counsel in tho Courts volow have made repeated submissions wich drev tho attention of the Learned trial Judge to Ex. ¥, ovon if it was only to rejuct it. The crucial point here hovever is that tho rejection or admission of Bx. 1 as part,of tho evidence was unavotdably cast on the trial Judge. ‘The distinction, to my mind, is tat whatever doctotom on tho point is arrived at vy tho trial Judgo, that Mecieion would be of a voluntary nature on the one hand and an involuntary one on the othor. 1 vae, at the worst, rather an obvious attempt by counsed to be unduly persuasive, and Lt cannot be said that a now matter was boing advocated. ‘ith respect, I do not think Use Learned trial Judge was justifion in excluding dx, Y from consideration bofere he had decided whether the plaintifts/appollants vere ontitiod to a declaration. Tie plaintirrs/appetiants 0 tho fact that the Learnod attachod great prominence to the fact that trial Juago withdrew Bx. # from his consideration, neider the plan had No arguod that failurs to consider the pli ned trial Judge's view adversely affected the learned trial ie 4 have been adjudged as othervise his elients wuld b neres of Land heseptod entitied, to at least, 167

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