Gbassy Keister v Elijah J.Speck & 2 Others (CC 414 of 1960) [1963] SLSC 44 (15 February 1963)

that the second order cannot be considered outside the scope of the Court of Appeal rules. I a~ of the opinion, therefore, that th: r~spondent_ herein_ ~as "ailed to comply w1th rule 18 of the House of Represenlat1ves Election PetitiOn Rules and that this application to strike out the petition should be allowed. I so order. Petition struck out with costs. [SUPREME COURT] GBASSY KEISTER v. ELHAH J. SPECK, M. S. MUSTAPHA AND A. T. BATTISON­ NICOL [C.C. 414/60] Plainllf} Defendants Practice-Supreme Court-Motion for order: for specific performance--Ordcr intended to be enforced by attachment-Necessity for pel$Onal servi.ce-S&rvice on wrong solicitor. Supreme Court Rules (Vol. VI, Laws of Sierra Leone, 1960, p. 126), Ord. XXX, r. 28; Ord. XLVII, r. 2-Rules of the Supreme Court (England), Ord. 42, r. 30; Ord. 67, r. 2; Ord. 7, r. 2-The Conveyancing and Law of Propert~ Act, 1881 (44 & 45 Vict. c. 41). On June 23, 1961, the Supreme Court ordered Elijah Speck to convey certain property to plaintiff. On July 17, Speck died without having conveyed the property. He left a will in which he appointed M. S. Mustapha and A. T. Battison-Nicol as his executors. On November 7th, the Court of Appeal ordered that the executors be substituted for Speck for the purpose of taking an appeal against the Supreme Court judgment. On March 9, 1962, the appeal was struck out by the Court of Appeal (Civil Appeal 13/61). On February 18, 1963, the plaintiff moved the Supreme Court for an order that the executors execute a deed of conveyance within one month. The motion was served on Cyrus Rogers-Wright, Esq., who had been executors' solicitor for purposes of the appeal, although James E. Mackay, Esq., was executors' solicitor of record. At the hearing of the motion, when neither the executors nor their solicitor appeared, the court ordered the executors to execute a conveyance of the property to plaintiff. The executors moved to set aside this order on the ground that the motion had been improperly served. Held, for the executors, (1) since plaintiff asked for the order with the intention that if it was not obeyed it should be enforced by attachment, it was necessary for the motion to be served personally on the executors. (2) Even if it was not necessary to serve the executors personally, the service on Mr. Rogers-Wright was improper, because Mr. Mackay was the solicitor of record. Case referred to: Reg. v. The Justices of Oxfordshire [1893] 2 Q.B. 149. Cyrus Rogers-Wright for the executors. Edward J. McCormack for the plaintiff. BENKA-COKER C.J. This is a motion to set aside an order made herein for the above-named defendants/applicants to execute a conveyance of 23, Sib­ thorpe Street, Freetown, to the plaintiff/respondent. Judgment was obtained 11 s. c. 1963 M'BRIWA v. BONA. Betts Ag.J. Freetown March 20. 1963 Benka-Coker C.J. s. c. 1963 KEISTER V. SPECK A. "'D 01HERS. Benka-Coker C.J. in this court on June 23, 1961, by the plaintiff/respondent against one, Elijah Speck and an order made for specific performance by the said Elijah Speck of a contract to sell the hereditaments and premises at 23, Sibthorpe Street to the respondent. Shortly after the said judgment was obtained, i.e., on July 17, 1961. the said Elijah Speck died without having complied with the said order for specific performance. The said Elijah Speck died testate leaving a will by which he appointed the above-named defendants/applicants executors of his said last will and testa­ ment, and by an order of the Sierra Leone Court of Appeal made on November 7, 1961, the above-named defendants/applicants were ordered to be substituted for the said Elijah Speck (deceased) for the purpose of an appeal against the said judgment ordering specific performance. On appeal, the appeal was dismissed. The solicitor on the record for the said Elijah Speck was Mr. Mackay a:Jd up to the time of the disposal of the appeal no notice of change of solicitor on the record was filed or served, although Mr. Cyrus Rogers-Wright signed the papers relative to the appeal as solicitor for the above-named defendants/ applicants. On February 18, 1963, the plaintiff/respondent moved this court by motion (hereinafter referred to as motion No. 2) for an order that the defendants as personal representatives of Elijah J. Speck (deceased) "do within one month of date hereof sign and execute a deed of conveyance of 23, Sibthorpe Street." On the hearing of the motion before referred to as motion No. 2 neither the defendants nor Mr. Rogers-Wright nor anyone on behalf of the defendants/ applicants appeared. On counsel for the plaintiff/respondent informing the court that §ervice had been effected and after the defendants/applicants had failed to appear after being called out and no one appearing on their behalf, the court ordered that the defendants/applicants do execute a conveyance of 23, Sibthorpe Street, Freetown, to the plaintiff/respondent and do pay the costs of the action and the application out of the estate of the said Elijah J. Speck. The application and the order on motion No. 2 were made under Order 30, r. 28 (White Book, Ord. 42, r. 30), which reads: " If . . . a judgment for the specific performance of any contract be not complied with, the court, besides or instead of proceeding against the disobedient party for contempt, may direct that the act required to be done may be done so far as practicable by the party by whom the judgment or order has been obtained, or some other person appointed by the court, at the cost of the disobedient party .... " This rule, in my opinion, provides for an order for the carrying out of an order for specific performance either by the person obtaining the judgment (not the disobedient party) and also for proceeding against the disobedient party for contempt-and not for ordering a disobedient party to comply with the order. This motion No. 2 purporting to be made under Order 30, r. 28, prayed as follows: "1. That the defendants as personal representatives of E. J. Speck (deceased) do within one month of the date hereof sign and execute a deed 12 of conveyance to the plaintiff herein of the house and premises situate at No. 23, Sibthorpe Street, Freetown. " 2. That the taxed costs of the above action and also the costs of this application be paid by the said defendants to the plaintiff." By paragraph 8 of the affidavit sworn by the respondents' solicitor and counsel, Mr. McCormack, in support of No. 2, he deposed: " I have made repeated applications to the substituted defendants herein, as the personal representatives of deceased defendant (E. J. Speck), request­ ing them to sign and execute the deed of conveyance of No. 23, Sibthorpe Street, Freetown, in favour of the plaintiff herein but they have refused to comply with my requests." The Conveyancing and Law of Property Act, 1881, empowers the personal representative of a deceased person to execute a contract which subsists on the death of a deceased person and it is not necessary for an order of court to empower him to do so. On reading the prayer set out on this motion No. 2 and paragraph 8 of the affidavit of applicant's counsel, Mr. McCormack, filed in support of the motion No. 2, I am satisfied that the order asked for was with the intention that it should be enforced by attachment if the order be not obeyed. There was no further necessity to ask the court for an order for the defendants to execute-they had refused to execute and it was open under Order 30, r. 28, to ask the court to appoint someone else to execute. This being so, it was necessary that service of the motion should have been effected personally on the applicants and not on their solicitor. Mr. Cyrus Rogers-Wright contends that it was an irregularity not to serve the motion personally on the defendants/ applicants, but on himself. It is clear from the affidavit of Mr. Mustapha, sworn herein on February 2, 1963, and the affidavit of Winifred Johnson, clerk of respondent's solicitor, that the motion papers (No. 2) herein were not served on the defendants/applicants personally but left at the office of Mr. Rogers-Wright. A note to Order 67, r. 2, White Book (Ord. 47, r. 2), lists the documents of which personal service is requisite-and " No (12): Order to do an act ... if it is intended to enforce it by attachment." Even if it were not necessary to serve the applicants personally I do not think the service on Mr. Cyrus Rogers-Wright for the applicants was proper. Mr. Cyrus Rogers-Wright was solicitor for the appli­ cants for the purpose of the appeal only, and, as soon as the appeal was disposed of, he ceased to be their solicitor, and, for all purposes relating to the action, Mr. Mackay was the solicitor on the record and the proper person to be served with papers relating to the action, or, if there was any doubt, service was to be made on the applicants personally. The note to Order 67, r. 2, White Book (Ord. 47, r. 2), reads: "The solicitor on the record shall be considered the solicitor of the party tiU the final conclusion of the cause or matter whether in the High Court or Court of Appeal," unless notice of any change of solicitor is filed and copies of notice lodged and served. See Order 7, r. 2, notes "Death of Plaintiff" and" Service on Discharged Solicitor ": " . . . On entering the order to carry on, notice of change of solicitor for the plaintiff should be given. . . " 13 s. c. 1963 KEISTER v. SPECK AND OnmRs. Benka-Coker C.J. s. c. 1963 KEISTER V. SPECK AND OTHERS. Benka-Coker C.J. Freetown .March 27 1963 Bankole J ones J. " In High Court proceedings, a solicitor can only be discharged from liability to receive service of proceedings by substitution on the record of another solicitor, or of the party in person. After such a discharge has been effected and entered on the record the discharged solicitor cannot be served, nor can he accept service. See Reg. v. Justices of Oxfordshire [18931 2 Q.B. 149 .... " For these reasons I hold that the service on Mr. Rogers-Wright for the applicants of the notice of motion No. 2 herein was irregular. I therefore set aside the order made herein on December 28, 1962, that the applicants do sign and execute. Costs of £2 2s. Od. to defendant/ applicant in any event. [SUPREME COURT] SAMUEL REITEW Plaintiff V. S. D. ROGERS Defendant [C.C. 66 I 60] Tort-claim for damages for unlawful threat-Threat by means of "swear" by medicine-man-" Swear" sancJ.ioned by Native CQwt--RemOlf:!ness of damages. Judgment was given against plaintiff in a Native Court at Bo for a debt which he owed defendant. When plaintiff failed to satisfy the judgment, defendant obtained from the court a written permit to " swear " the plaintiff for payment of the debt. Plaintiff agreed to pay on a fixed date, but when the date arrived it was found that plaintiff had left Bo. A week later, defendant performed the swearing ceremony on the highway near plaintiff's house. Plaintiff brought suit against defendant, alleging that when he returned to Bo he was ostracised because of the " swear" performed by defendant, that, as a result, he and his wife had been forced to move to Freetown and that he had lost business profits and had had to incur extraordinary expenses. Plaintiff asked the court to award him £897 10s. Od. damages. Held, for the defendant, even if plaintiff's evidence was true, his damages were too remote to be recoverable. Note: This decision was affirmed by the Court of Appeal on November 11, 1963 (Civil Appeal 10/63). Nathaniel A. P. Buck for the plaintiff. S. Hudson Harding for the defendant. BANKOLE Jol';cS J. The plaintiff's claim is for the recovery of the sum of £897 10s. Od., being losses as a result of the defendant unlawfully threatening the plaintiff, who acted to his detriment, and others who acted to his injury, loss and privation, whatever this may mean. The original claim included one for damages for assault on the plaintiff's family. At the hearing this was abandoned. As I understand the plaintiff's claim it is one founded on a threat of death issued by the defendant against the plaintiff, his wife and all persons who should give aid and assistance to him. The threat relied upon is a "swear" on a Mende medicine by a medicine-man procured by the defendant, invoking the wrath of thunder. The facts are that the plaintiff owed the defendant the sum of £5 15s. Od. 14