Freeman v Luke (CIV APP 30 of 1971) [1972] SLCA 1283 (5 May 1972)

SECTION 15 THE AFRICAN LAW REPORTS litigant can be charged only with having maliciously and without reasonable cause exercised his right of setting a court of justice in motion. The litigant is exempted from any liability for false imprisonment even if the court ordering the imprisonment has 5 acted without jurisdiction, because it is the right of every litigant to bring his case before the court, and it is for the court to know the limits of its own jurisdiction and to keep within them. In the result, we would allow the appeal and order accordingly. The conviction is quashed, the sentence set aside and the fine 10 paid is to be refunded to the appellant forthwith. Appeal allowed. 15 20 25 30 35 40 FREEMAN v. LUKE Court of Appeal (Forster, J.S.C., Cornelius Harding and Percy Davies, JJ.A.): May 5th, 1972 (Civ. App. No. 30/71) [ 1] Civil Procedure-interlocutory proceedings-preliminary point of law­ disposal of point of law raised by pleadings-point of law to be disposed of before trial where decision on it will substantially dispose of action: Where the decision on a preliminary point of law raised by the pleadings may dispose of an issue but not of the action as a whole, it may be expedient to deal with it during the hearing of the evidence at the trial; but where the decision on such a point of law will, if argued before the trial, substantially dispose of the action, it should be disposed of then and there under the provisions of the High Court Rules, O.XXI, r.2 (page 101, line 21 -page 102, line 7). (2] Civil Procedure-pleading-objections-objection in point of law-objec­ tion to be disposed of before trial where decision on it will substantially dispose of action: See [1] above. [3] Courts-High Court-procedure-objection in point of law-objection to be disposed of before trial where decision on it will substantially dispose of action: See [1] above. The respondent brought an action in the Supreme Court (now High Court) against the appellant and two others seeking (a) a declaration that he was the owner in fee simple of two plots of land, (b) damages for trespass, and (c) an injunction restraining the appellant and the two others from further trespass. The respondent alleged that he had been in possession of the land in dispute for the past 25 years and that the appellant (then the third defendant) and two others (then the first and second defendants) had wrongfully entered his land and pulled down fruit trees and erected beacons on it. He further alleged that the first and second defendants had purported to convey portions of his 94 • FREEMAN v. LU~E,1972-73 ALR S.L. 94 C.A. land to the appellant and to her husband, since deceased. The appellant denied that any land belonging to the respondent was conveyed to her and to her husband since the land in dispute did not belong to him in the first place, but had belonged to her late husband and was now in her possession as administratrix of his 5 estate. The proceedings against the first and second defendants were discontinued by leave and those against the third defendant (now the appellant) continued. The appellant applied for an order that two points of law raised in her pleadings might be disposed of 10 before the trial under the provisions of the Supreme Court (now High Court) Rules, O.XXI, r.2, seeing that a decision on them by the learned trial judge might substantially dispose of the whole action. The first point of law was that the appellant was not personally liable to the respondent and should have been sued as 15 her late husband's legal personal representative; that being the case, O.III, r.4 of the Supreme Court Rules required that there be an indorsement on the statement of claim showing the capacity in which she was being sued and the absence of such an indorsement was fatal to the respondent's claim. The second point of law was 20 that the respondent's claim was barred by lapse of time since, under the Law Reform (Miscellaneous Provisions) Act (cap. 19), s.2(3)(b), as amended, the action should have been brought within three years of the death of the appellant's husband. The respondent contended that (a) the points of law raised by 25 the appellant were matters to be dealt with during the trial; (b) the appellant had a beneficial interest quite apart from her interest as personal representative of her late husband and she could there- fore be sued in her unsworn capacity; (c) the Law Reform (Miscel­ laneous Provisions) Act (cap. 19) referred to actions in tort, 30 whereas the present action was one for a declaration and an injunction; and (d) the date of death of the appellant's husband must be proved by the giving of evidence. The Supreme Court (Browne-Marke, J.) upheld the respondent's contentions and dismissed the appellant's application. At the conclusion of the trial 35 judgment was given for the respondent. The appellant appealed on the ground, inter alia, that the learned trial judge was wrong in law in deciding that points of law raised by a party in an action should be established by evidence during the trial. She reiterated her previous contention that where a point 40 of law raised by the pleadings, if argued and determined before the 95 5 THE AFRICAN LAW REPORTS hearing, would substantially dispose of the action, it should be so determined forthwith. The appeal was allowed. Case referred to: (1) Everett v. Ribbands, [1952] 1 Q.B. 112; [1951] 2 All E.R. 818; on appeal, [ 1952] 2 Q.B. 198; [ 1952] 1 All E.R. 823, applied. Legislation construed: 10 High Court [formerly Supreme Court] Rules (Laws of Sierra Leone, 1960, cap. 7), O.III, r.4: 15 20 25 30 35 40 The relevant terms of this rule are set out at page 102, lines 10-13. O.XXI, r.2: The relevant terms of this rule are set out at page 99, lines 21-26. 0 XXIII, r.13: The relevant terms of this rule are set out at page 100, line 39 -page 101, line 3. Law Reform (Miscellaneous Provisions) Act (Laws of Sierra Leone, 1960, cap. 19), s.2(3), as amended: The relevant terms of this sub-section are set out at page 99, lines 30-34. McCormack for the appellant; Gerber for the respondent. FORSTER, J.S.C., delivering the judgment of the court:! Because of the importance of a point of law raised in this appeal, and of the decision we have arrived at, extensi"Je extracts from the record of appeal have been reproduced in this judgment as we are of opinion that they would prove a helpful adjunct to our expo­ sition. The appellant and two others were sued in the Supreme (now High) Court by the respondent in the following writ of summons (omitting the non-essential parts): "In the Supreme Court of Sierra Leone. Between: Thomas Carew Luke-Plaintiff, and Georgiana Wilson Mariana Leonora Coker Mrs. Gwendolyn Freeman-Defendants. The plaintiff's claim is for- (i) A declaration that he is the fee simple owner of the land and hereditaments situated at Tenbe Fakai, Wilberforce, in the Western Area of Sierra Leone. (ii) Damages for wrongfully entering the plaintiff's said 96 FREEMAN v. LUKE, 1972-73 ALR S.L. 94 C.A. land, surveying it, and pulling down and destroying his fruit trees thereon and erecting property beacons thereon. (iii) An injunction restraining the defendants their servants or agents or otherwise from continuing or repeating 5 the acts of trespass complained of." The writ of summons was issued on June 17th, 1.967. [The learned justice of the Supreme Court then read the state­ ment of claim which set out the location and extent of two pieces of land which the plaintiff claimed as his own, and which 10 went on to state that the plaintiff had been in possession of the land since 1946; that since January 1963 the defendants had entered on the land to erect beacons there; that in March 1963 the first defendant had purported to convey a portion of the plaintiff's land to Herman Albert Freeman, now deceased, which the third 15 defendant was now claiming for herself; that the second defendant had likewise purported to convey a portion of the plaintiff's land to Freeman and to the third defendant; and that notwithstanding repeated requests and demands the defendants had persisted in their acts of trespass. The learned justice of the Supreme Court 20 continued:] The defendants severally filed their respective defences, but this appeal concerns the third defendant alone and we shall confine ourselves to her case accordingly. In addition to her original defence she, by leave of the court below, filed an amended defence, 25 both of which are reproduced below: A. "Defence of the third defendant. 1. The third defendant Gwendolyn Freeman denies that the plaintiff is in possession of the pieces of land mentioned in paras. 5 and 6 of the statement of claim as alleged or at 30 all. 2. The third defendant avers that she and her predeces­ sors in title are in possession of the lands in dispute herein and have continuously so been in possession prior to the year 1913. 35 3. The third defendant further avers that the lands de­ scribed in the conveyances mentioned in paras. 5 and 6 of the statement of claim, and of which lands she is in pos­ session, are not one and the same as the lands described in para. 1 of the statement of claim herein. 40 4. In the alternative, the third defendant denies that the 97 THE AFRICAN LAW REPORTS plaintiff is the fee simple owner in possession of the lands described in para. 1 of the statement of claim or at all. 5. Herman Albert Freeman, the person named in paras. 5 and 6 of the statement of claim herein, died at Freetown, 5 in the Western Province of Sierra Leone, on October 19th, 1963 intestate, and letters of administration of his estate were granted to the third defendant herein, as his lawful widow and relict. 6. Save as aforesaid, the third defendant herein denies 10 each and every one of the allegations contained in the plaintiff's statement of claim as if the same were herein set out and specifically traversed." B. "Amended defence of the third defendant, Gwendolyn Freeman herein. 15 1. The third defendant avers that she is not personally liable to the plaintiff on his statement of claim herein as alleged or at all. 2. The third defendant denies that the first and/or sec­ ond defendants herein conveyed to her portions of the 20 plaintiff's land as alleged in para. 4 of the statement of claim, or at all. 3. The third defendant further avers that the lands described in the conveyances mentioned in paras. 5 and 6 of the statement of claim, and of which lands she is in 25 possession as administratrix of the estate of Herman Albert Freeman (deceased) are not one and the same as the lands described in para. 1 of the statement of claim herein. 4. The third defendant denies that any land of or belong­ ing to the plaintiff was conveyed by the second defendant 30 herein to herself and Herman Albert Freeman as alleged in para. 6 of the statement of claim, or at all. 5. Herman Albert Freeman, the person named in paras. 5 and 6 of the statement of claim herein, died at Freetown, in the Western Area of Sierra Leone, on October 19th, 35 1963 intestate, and letters of administration of his estate were granted to the third defendant herein, as legal per­ sonal representative. 6. In consequence of para. 5 hereof, the third defendant avers that the plaintiff's claim herein (which is not admit- 40 ted) is barred by lapse of time; and she specially pleads the Statute of Limitations applicable herein. 98 l F FREEMAN v. LUKE, 1972-73 ALR S.L. 94 C.A. 7. Save as aforesaid, the third defendant herein denies each and every one of the allegations contained in the plaintiff's statement of claim as if the same were herein set out and specifically traversed." [Emphasis supplied] . Early in the trial, the cases against the first and the second 5 defendants were discontinued by leave and that against the third defendant, now sole defendant, continued. Following the filing and service of the amended defence of the third defendant, the appellant's counsel moved the court below, pursuant to O.XXI, r.2 of the High Court Rules that the points of law raised in the 10 amended defence be disposed of before the trial, alleging that if such points of law were decided in one way, they would substan- tially dispose of the whole action. The two points of law raised were: "1. The defendant is not personally liable to the plaintiff on 15 his statement of claim herein as alleged, or at all. 2. The plaintiff's claim herein (which is not admitted) is barred by lapse of time; and the defendant specially pleads the Statute of Limitation applicable herein." Order XXI, r.2 states: 20 "Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who tries the same at or after the trial, provided that by the consent of the parties, or by order of the court - on the application of either party, the same may be set down 25 for hearing and disposed of at any time before the trial." The Statute of Limitation referred to is the Law Reform (Miscel­ laneous Provisions) Act (cap. 19). Section 2(3)(b), amended by s.ll of the Law Reform (Law of Tort) Act, 1961, stipulates as follows: "No proceedings shall be maintainable in respect of a cause 30 of action in tort which by virtue of this section has survived against the estate of a deceased person, unless ... (b) pro­ ceedings are taken in respect thereof not later than three years from the date of death." The motion was exhaustively argued by counsel and in giving his 35 decision thereon Browne-Marke, J. said, inter alia: "Speaking on his application made on behalf of the third defendant [counsel] asked the court to make an order in terms of the applications. He said that the points of law raised were on the face of the motion and argued that as 40 regarded para. 1 of the amended defence the third defendant 99 THE AFRICAN LAW REPORTS had averred that she was not personally liable to the plaintiff in the statement of claim as alleged or at all. In other words, that the third defendant had averred that she was not sued in a representative capacity as required under O.III, r .4 of the 5 High Court Rules since there was no indorsement on the writ of summons or statement of claim which was fatal and that as a result the action should be dismissed. In para. 6 the third defendant averred that the plaintiff's claim was barred by lapse of time under the Law Reform 10 (Miscellaneous Provisions) Act (cap.19), s.2(3)(b ), as amended by the Law Reform (Law of Tort) Act, 1961, s.11; that the writ of summons was issued on June 28th, 1967 and that action should have been brought within three years of the death of the deceased. 15 Mr. Luke in reply argued that the application was not a fit and proper one in which the court should exercise powers under O.XXI, r.2 and that it could not dispose of the action; that nowhere in the writ of summons or the statement of claim was it recorded that the defendant was being sued in a 20 representative capacity; if no reply was filed to the amended defence, the issues were joined under O.XXIII, r.13; that the third defendant had a beneficial interest quite. apart from her interest as personal representative of her deceased husband and she could therefore be sued in her unsworn capacity. The 25 Law Reform (Miscellaneous Provisions) Act (cap. 19), he said, referred to actions for tort and the present action was one for a declaration and an injunction. The date of death of the third defendant's husband must be proved and this could only be done by evidence. 30 Order XXI, r .2 gives the judge discretion to dispose of a point of law raised by the pleading at or after the trial with the proviso that on the application of either party the same may be set down for hearing and disposed of at any time before the trial. 35 I consider that the points raised by Mr. McCormack are matters which should be dealt with during the trial and evidence given. The motion is therefore dismissed." Order XXIII, r.13 states: "If the plaintiff does not deliver a reply, or any party does 40 not deliver any subsequent pleading, within the period allowed for that purpose, the pleadings shall be deemed to 100 . . ~ , . l > FREEMAN v. LUKE, 1972-73 ALR S.L. 94 C.A. be closed at the expiration of that period, and all the material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue." At the eventual conclusion of the trial of the action, judgment was given in the court below for the plaintiff on the terms of his 5 claim and damages assessed at Le50.00 awarded him also, with his taxed costs. The grounds of appeal to this court are: "(1) The learned judge was wrong in law in deciding that points of law raised by a party in an action should be estab- 10 lished by evidence during the trial. ( 2) The learned judge failed adequately to consider the third defendant's defence herein, and mis-directed himself by thinking that the third defendant "appeared to have defended the action as personal representative of her late husband" 15 when in fact she was never sued as such. (3) The judgment was unreasonable having regard to the evidence." The relief sought is the reversal of the judgment of the court below. 20 Where, in our opinion, the decision on a preliminary point of law to be argued before the trial would dispose of an issue but would not otherwise have the same result in regard to the action as a whole, it may be expedient, in the interests of justice and for the saving of time and costs, to deal with it as part of and during 25 the hearing of the evidence at the trial. But where such a point of law will, if argued before the trial, substantially dispose of the action, that point should be so disposed of then and there. We cannot express this more admirably than in the words of Lord Justice Romer in the case of Everett v. Ribbands (1) ([1952] 30 2 Q.B. at 206-207; [1952] 1 All E.R. at 827): "For myself, I think it is a pity that this point was not set down as a preliminary point of law before the hearing. The action was a substantial one; I understand it was estimated to last three days, and I can well believe that it would. The 35 point of law if decided, as it has been, against the plaintiff, would have been decisive of the case. Although there may have been good reason for not applying, I should have thought this was the very class of case in which an appli- cation ought to have been made under Ord.25, r.2, to have 40 the point determined before the hearing, so as to save all 101 THE AFRICAN LAW REPORTS discovery of documents, the collecting together of witnesses, and so on, and have the question decided at a very early stage. I think where you have a point of law which, if decided in one way, is going to be decisive of litigation, then advantage 5 ought to be taken of the facilities afforded by the Rules of Court to have it disposed of at the close of pleadings or very shortly after the close of pleadings." Order III, r.4 of our Rules (literally the same as the correspond· ing English Supreme Court Rules) directs as follows: 10 "If the plaintiff sues, or the defendant or any of the defend· ants is sued, in a representative capacity, the indorsement shall show in what capacity the plaintiff or defendant sues or is sued." In the case giving rise to this appeal, there was abundant evidence 15 in the pleadings, at least in the defences filed by the appellant who was the third defendant, to alert the respondent, who was the plaintiff in the court below, of the facts of the character of the third defendant at the material time when the pleadings were closed. Counsel for the plaintiff, faced with certain events which 20 occurred between the issue of the writ and the close of pleadings, applied for and obtained leave to amend his statement of claim and to discontinue proceedings against the first and second defend­ ants when he could safely have done the same in respect of the third defendant and so minimise, at least, the costs that would 25 have been awarded against his client. We find that Browne-Marke, J. erred in dismissing the motion for the disposal of the points of law raised for determination before the hearing. We allow the appeal, set aside the judgment of the court below and remit the case for that court to hear and 30 determine the points of law raised in the said motion before pro­ ceeding to try the action, or otherwise, as shall be decided by the court below. The respondent will pay the appellant's taxed costs in this court and in the court below. 35 Appeal allowed. 40 102 l