John & Anor v Stafford & Ors (CIV APP 1 of 1975) [1976] SLSC 4 (13 July 1976)

| tl ura: | d 7 . Uf ae “4 GN Tis SuFWmIy COURT oF SIERRA LEONE Be i ae H . 4 A aa . HH é. ee * ae ir gaia. - C,0.8. COLE, Chief Justice (Presiding) Hii Beka Wl eo ; 8.0.0, Barts, Justice of the Supreme Court i Beg : } a Al * Sy. LIVESEY LuKa, . Justice of the Supreme Court . g ong A.V. AUUNOR-RENNER, Justice of Appeal : tl Bead h Bia S.C.it. WARNE, Justice of Appeal ' ae . eae i - Ka : Civil Appeal No.1 ii meee see 4 . | wees : Pee DUNSTANT-E. JOHN & REUBEN L, MACAULEY it . HE aa - Plaintiffs/Appellants ill Po a : Hy | . > ie and ia dpe 4 WILLYAM STAFFORD, ALFRED GEORGE | ee Hf NATHANIEL COLE & JOHN ZDDIE TAYLOR I , a 3 ~ ‘Defendants/Respondents Bas & Bite t Bo BO } aed “4 ~ JUDGMENT ATH JULY, 1976 : eraitegg a ae J.H. Smythe, Zsq., Q.C., wieh him ORS | : a : ‘Mrs. i, Almed for the appellants re | aaa i . 5 I Gs ‘iJ, Bishop-Gooding, fsq., with hin ~ dk x igen . ae G.J, Betts, Esq.;. for the respondents . - j Oe / j ae axe . DETTS, J.S.C.:- On the 21st January, 1975, the Court geen : : Se a of Appeal delivered judgment dismissing an appeal :. " . Bs tits Ml ‘ ° Eo from the High Court, judgmént of which Court was t. ae i . ii 4 ae ) * . dated the Gth December, 1973. The pith of that i Ri ace eB : - | oy Le $ judgment was that the case of the plaintiffs/appollants - Bee: : : Bs aes 1 4was based on such ureliable foundation that it would 2 ig i : a oy be unsafe to make the declaration and orders eought. Bi eR . i ‘ - E Be . |The Court of Appeal in affirming that judgment ae t : : St eae } said: inter alia .- . > M ae Q * Qe § “The various authorities cited q eave. ; before him" (tho learned trial - | ie) ates ‘ Judge) "were roviewad by him and q se ose 4 he came to the right decision in | + page } dismissing the action as the burden . Bi eas i ieee : | eas i a i] bres 4 BY mee : i oe amenities

= re pe . _ ay ae of proof cast on the plaintiffs/ Hi , a appellants was never discharged Ht ee Reid “by: them." Hi a y a aa It is against the judgment that the following Ng Be fs ie : | aS grounds of appeal were lodged. i aa Hi ; es (i) The Court of Appeal is wrong \ > Bees in law in.upholding the judgment aN es . of the Nigh Court with reference aon : ta that Court's rejection of the \ Biss evidence of the 4th Defence if ae Mitness lr, Hcwen who had ii} Re tendered Ex. i because it was Hi . fa . prepared while the case was in il . me: progress. a ‘ae ue . - (ii) That the Court of Appeal as was it 5 ae : constituted was ultra vires the i Res ic ‘ Constitution in that one of the f : | 4 : ae Judges the Honourable Justice ~ ‘wR t ef ; Ken.

0. During, J.A, who heard f Wy Bee arg * the appeal had given a ruling ® Ii a Ban in the matter in the High Court. . in ee agit ve . fa - (iii) ‘That the Court of Appeal was | aa E wrong in law in upholding the Aq . ind judgment of the High Court with - x 24 Bei reference to the ruling of _ if aE . : Honourable ien. During dated AN i , ee 27th April, 1972, refusing an £ HI | ee application ta strike out the gy i ' ow ON defence of the 1st and 3rd Be ae 7 defendants on the grounds that | . See they violated the rules, principles y . eet ‘and practice of pleading. | : See i ° eae (iv) That having regard to the evidence i Bee ceed and the law applicable the judgment Bosh is unsatisfactory. i Bas Teed Bo: (v) The Court of Appeal was wrong in ‘ ae : law and acted contrary to all one ag known principles of law and , Be uu practice in merely accepting the q : Fae findings of the trial Judge with- F Bee. bss | out even attempting to. review Ae the law and the facts. a? - AE 7 te ABE : * ; mee > ee : For the purposes of this appeal counsel for the Wy ah: AER: Fs . 1 eS st & plaintiffs/appellants notified the Court that he k a aa | i) a ey ; was. not arguing grounds 2 and

3. The grounds on Hl fn 2 Renee ¢ i | von Be Sa which he was basing his arguments were 1, 4 and 5. cn Bel Aes: . thi 34 Bi These he proposed to deal with under five heads. te W ie . Before arguments started however counsel for the | aa: defendants/respondents applied for an ‘amendment to a ee eae ae i fees his, case. Let me dispose of it at this point. > i Es aes Hy ool aN . A] i i

a : a pec ae - a —_ 2 ee Bil: g 73 pe alee : ie i Bc heie B He dre the altention ef tie Sourt to the fact . oa pee . Ree Bi ips that consistently counsel fox tie sadatizce az + a ie Be: ae plajatiffs/avscliants in the ij. Sourt and im the e a a a : 3 ES las Ba; Sourt of Appeal endeavoured (o attain the rejection a BS ais, by the Qourts af ux. W and that in the Suorene, court . ES ae : Be & ie! counsel for the axe parties Sas adopted a conpletet a ae UssParent Line of avoveach vy inviting the Courk to i a a : aad a consider x.W - a sian of tne entire area inoluding a a4 the portion allegedly Lrespaaned, Ze argued, that ir | ee a ae + eget i. this approach is conceded lien this Saurt might de | 1 RE e ag. ' ae c: ae: callet upon to assess and evaluate fresh aatlers. : can Be ae : ae RS: ‘Te support lis argument ne cited the case of EXPARTE Sige t qa a a a a EBVITSE Te yO (1877) 5 Sh. +.982;. and NORTH : a ie 4 SMFFO IEEE ve 233 (1920) £22, 25h gt F263. ef fa a 5 fe: a F In tie "I -si07G0'S" ease, the situntion vas = Saat a : a. ee ie K equivecn] and al the hearing 4¢ vas the fraudulert ‘ co ae conduct of the plaintife that was mare atrengly urd « oA ae . a eb than that of the defendant, ‘Mis ‘vas nat a defonen a Ba Jin the opinian af the Thief Judge but.e new case AE. os ae . ee ae a { being sot up. it wag a question of ‘who had behaved . a a Se. fraudulently and to whom. ven if it is concédod thai ee: ia aS » Me ae a ox. Wo -.an exliibit could have some bearing «nathe cas: ae a a a : a F dae: Be: ee - it was not of such a nature as to affect its basic . oe a E. ae character. fn that ease “il /.s00ESH" and the sunject a ad ee ig +, i oe 2 matter cannot ve compared, in the ‘ease of | NORTH a ee STAPFORDCNIRE already cited T imuld quote « portion " sa Fee s y ae Ts: as 0 of Lord Birkenhead's Judgmnnt aud then ‘mike « further an er ae a : ij Bian P< ieee g distinction between wuat cap be gathered fram st cad | ‘ ce oad Bi ; . ee: Ow is the submission of coumsel:— | ae € Bs eee . ae oe bs es "Me appellate nysten in thin enuntry ep cc ee is conducted in relation te-eertain ii a ae well kno-m principles and, familiar i|! 7. on . ae methods. The Lasuoa of Cacta and | + ay : 4 . lws ave erally presented hy counsel. wet Ba In the fourso of bis argumant. it im re ae pe : the jnvariable practice of appellate ag Be . ee ee 2 Be er : AD), OHA Ai eee |. i

oe . . i : Me 7 : aa + ae} eens Be By cata tribunals to require that the a ae Va judgments of the judges in the : a i Bees Courts below shall be read. The an Be sree efficiency and authority of tho a Bi ee Court of Appeal and, especially me Sieg of the final Sourt of Appoal, are , A Fae inereased and strongthened by the 1] oF Ee cpinione of Learned juiges wie. ay ae have considered these wattors below. + ae cae To-acquiesea in such an attempt as a = the appallants hava unde in this cla aed caso is in offect to undertake : : Bek decisions vhich may be of the highest a : ee importanco without having received a tga any assistance at all from the yi Be judges in the Courts below." > a fF. eer ie era From observations on the conduct of this case the Ean ae gb i aa counsel in the Courts bolow have mado repeated } Me a4. ! ae a ff submiasions which drow the attention of the learncd a = a ‘ fas hs, Hie trial Judge to Ex. ¥, oven if it was only to rejuct Bi q Bs. iy: it, The crucial point here hovevor is. that the Pe ae ae Ye a rejection or admission of &x. i! as part of the “ OE b> See : oan a evidence was unavoidably cast on the trial Judge. com be a as The distinction, to my mind, is tiat vhatevor deciotos ae Bey on the point is arrived at by tho trial Judge, that « * Pa Bs Ti ; : eng oe a ‘faerie decision yould be of a voluntary nature on the one ast eee nd Bae hand and an involuntary one on the othor. It was, Be ‘ Bs tee “s a a a at the worst, rathor an obvious attempt by counsel i Eek to be unduly persuasive, and it cannot be said that . et Bcd I do not think the learnod trial Judge was justified aig Be: . £ ae th excluding x. ¥ from consideration before he had od ae decided whether tho plaintiffs/appellants were ria i Di aq ontiticd to a declaration. Tao plaintiffs/appellants Ae 4 <i ae a : attachod Great prominence to the fact, that the learnod i| A a ; ae trial Judge withdrow Ex, # from his consideration. | 4 ae a es ay Ne argued that failurs to consider the plan had bee cae adversely affected the learned. trial Judge's view ee ae as otherwise lis elionts would havo been adjudged fe Bi entitled, to at least, 1.7 acres of land heoeptod rn on a : 5 + Bo a es ae cee ve fet ie aes A aoe : a Sa Cs . = | ee ee se ees ee iT a a J I KS i EY ¢ 4 —

7. eee gs TS . ay og therein to have been trespassed upon. | Counsel i a a argued that the reason that tho plan was prepared 4 a q during the progress of the trial advanced by the ! . : a 4 Judge was untenable as the ease on which he relied ~ Be —_ did not contemplate that specific contingency., we F a od - JACKBR v ‘THE TINTERNATIONAL CABLE COMPANY LTD. | i a (1888-85) Vol. V LTR 13 carries a head-note, Appeals |; % a = - Evidence improperly received in Court below - : ; . q : Duty of the Court of Appoal. This obviously was ‘ i guidance for the Court of Appeal, and not,the Court. | : : 4 of first instance but the case of BOYKER v, ‘ s ae. WILLIAMSON (1888-1889) Vol.V L.T.R. 383, showod : a : that the Court of first instance could reject from : . a 4 consideration, in certain circumstances as where | Pa _ | there was a delibegate attempt to conceal the real a a _ | terms of an agreement, evidence it had already ‘ . 4 | Be received. ‘No parallel was suggested in Bowker's to ! : : | 4 fit the case here, Counsel for the plaintiffs/ | | 4 . appellants realising that the failure of the trial é 7. { Judge to ascribe an acceptable reason. for the i. ; a ; rejection of evidence does not automatically ontitte i! ae a 4 Ex, to consideration, wyen if admissible, referred i | : a | to $.3(3) of the Bvidence (Documentary) Act, Cap.26, a . aS i 1926. The text is "Nothing in this section shall 4 z a q sender admissible as evidence any statement made by | a ; . a porson interested at a time when proceedings wers . vd a : pending or anticipated involving a dispute as to any . | * a 4 fact which the statement might tend to establish." 7 a After a document:has ‘becn admitted S.4(1) of the a a same Act dictates how that. statement is to be evaluated “44 a d as to weight. ey “7 a a : I Wave. already referred to. the fact that Ex. WV was 7 a 4 . excluded from consideration by the learned trial Judge. 3 ae . i |

aes, ee — . : —_ : | a _ a : : a Fi , Lo | i en al on This, in my opinion and: vith respect; wae without i | : ay a patisfactory foundation in lav, In determining : a 7 al aq \ Whether D.V,4 was a person interested and whether . Te eo q a Ex. W which he prepared could be admitted in the I i e first place, and when admitted, secondly, ought to j {| H | : ue = be considered, certain guide lines are necessary. i) | 7 a : ~ When a person is interested his statement or Bt BS dscanent would be “inal saibie under 8.93) of 14 Bo thie Evidence (Documentary) Act, Gap. 26,1926 in AM | af Sterte-besistihile in Gngland the same effect would i i ; A be prOaUCd by Virtue oF 8.1(3) of thaié Bvidends” * q ee co Be sc interpretation in a long and inpressive line of cascs. Th oe a “Bue TETAS bogin With Tpereant TEE woang May i | person, whatsoever! as in BAUKGIAZ -v SOUTH VALZS (He ' . a ag . “ TRANSFORT CO, (1949) 1 %.B. 54; and ‘person . i | as a . interested' means a person interested in the result Hi : | ie E Tmt of the proveedings, pending br.anticipated; this a ~ i : 3 4 “servant of a company. is interested in the proceedings Hi | a i of the company where it is to his advantage for th: i . a a company to succeed ( PLOMIZAFUEL “SCONOHISER COMPANY i : al nad v NATIONAL HARMETING BOA) (1941) Ch.

248. So alsc 4 ‘ a @ domestic servant where her reputation for care as 4 |, a : a child-minder was in issue. 2VON AND EVON v. NOBLE ‘| | : ce ee (1940) 1.K.B., 222 or (1948) 2 ALL E.R. 987+ As the i | ‘ a oq "character and subject matter of the proceedings and fy J a a : the relation thereto of such person must be considers.” i : ae a all servants are not necessarily persons interasted Ht hae e a ae in the case of IN A HITLL, BRAMAN vy HASLEVOOD ti) i in q 2 4 (1948) 2 ALL @.it.°490, in which a solicitor's clerk Ki * P| : 4 was declared a person. not interested. In two cases / a a el the word ‘interest! was doalt with,’ FRIEND v. i « a we HALLHAN (1946) ALL 3.2. 634, Somorvell, L.J. said — eh : ie Shae: AGE pl id

—_— — . ™ — rae . RS od 1 i oy Pee . Heo . : i °°. eae “Interest ¢leocty means personals Wd ag interested in is tautt’ef tne 9 ee . ee procecdings." . iF : .e av? Delvin EJ. to BEAMS LTD. Vv eeTdoPal TAN WL ¢ a Police pesTmict i UO) 1 ots... 634, Nh e said - Pie 3 ® these . See ieee ae “She yore ‘interest! is aot’a tiie . oe sora wich has any well defined dit : 2s neanian, ani anyoat; Who was tt | See asked What it sant would at once We . See 1 sant to knov its coatext in “mich ies ee, it ‘as p8ed.o<fore ic could venture | i yy Re an opinien, It may mean a direct i i 4 es financial interest on the ane rand | Hs Bee . or on the oticr hand it may mean Mitte . ae nothing more than the ordinary (ite ee inter ist which evecybedy has in the cs oat ' ourtceme of proceedi gs Tm whieh he a these Bee: is Likely to be a witaess.4 : Nees : ae j iss ae Iaterdor to acrive at a decision whather Du, by Lie ie . Wee ae He. HeEven une an Interested pertou x would hove to He Se Ei i Bo isi: yee Whether he could conceivably hove iny : He . Ve Bees “persenal interest in the outcome of the proseediags, met ae 1 Bi: a . whethes BW. .4's professieath oc financial interests | i ae were in issue, whether his Genduct bad been dictated ie a hee ee by himeet? or whether he was under the contre] of He F a Hass Bo Some other person and whelhec he had “the Skite to ~ He ] ee execats the work for which he was engaged. and what “ i Res wog is rolationship Witd his exployer. ‘These questions Ke Bee a i Be see eribrace in ay opiaion a roasonadle examination of, the lt te : ° as ad Circumstances; the contents of the apcuagnt ongorned; Hit: Boa : one Ak ae the factors whic) Would establish vane purpose why, Hl ) ile : WAS ae. the docunent was wade, ant ckarly, Ef the maker bad Ht ie . fe . @ personal interest iw tre result of the proceedings. i ee » een. . Hlet Beeps ppalying these tests Z cau safoly say Foam satisfied - « | hed F Clea : Weed eo; i q that D.W.h tu. Hetwon is not a paraon interented unier le easy 3 til bee ieee > * ala eae 4 a : the Act and Bx.W has properiy been admitted and oust Bel : ee t < Hi sear Bek! to nave deen considered Lf the circunstaners so i al i Been so ikea a | require mo, TS Counsel for tia plaintists/eppeblants treated the “ He | : eS. ere i . i ae el

t rt - a yee — . a = asia a

oo ge : : i . eee. | “ i Ro Bos Ht eae . Bes 2 a . i * om a ntaterent of defence. an an atzissien of treapass ti Beis ag . ai Bes ce : Hi aaa to the extent af 1.7 acres of lang. He grounded | Bee oh ; r ema bit . } : ae his plgnt te a judsaent to trat extent on the Hi el HI ae ai + Be evidence of D.W.4; Ex. ; anc tue statenent of i) 4 Beek : : | ae defence. Ceunsel for tre defendants/reszondents, | \ See i Be stronsly protested tuat ue aaze any such adsission : Ber “ . ated i ' Se oe and tsat his use of tae werd toverlad' stiould not ie Be ois ani floas not convey aay suc’: intention, Za the case _ Rae of CHRISTIAN Yao RusrEpy 3 OTIERS .v pus. ZTIAH 4} ee ponraey 3 oTRERS 2 W.A.CLA. 273 involving trespass ay 1 ae te land in the Told Uoast (thea) the sword ‘overlay! i Be Ss : : ee. aa vas used in the course of the jutgnant. It reass.- Bets | Bh pha - "“Taere are any points “mien dear . q Bee) rath: out this viev taat tie area of ' Beis Hisietu's grant 2iz not ‘overlap! i Bes the area: claimed wr tia appellants. ij 3a eee: ~ The Srost stviiin; is taat Jisiqdu's Iq Bia oes Bl : stdtlewent and cultivation were F Bost entirely north of the road, Tris i See; it should 52 noted «as a-case of q Bc tres>ans to lani, Tre respective * au ys clains vere shovm,on a paan ix.k Hf Sea: in tue case, ‘isiedu's clain ying iy , ae: eaged green and Josren's yello-, 1? ees Tne trial Jatze decided’ in, favour, it ‘eee . of inieduts sida and gave nix Vf Be £100 dasages with costs to hin and © ~ t | Se nis associates, and jranted an eB > Joa injunction arainast Jowtvex and his’ iF : See associates, trsir ayenta or servants i Bees cA: trespassing. on tas land." ha . See : . j Beet! 258 - - a ; tee . Edo not see tor = can.coae to shy ether oenclusion a ee ee i | ee than that tye vord ‘overlay! used in this Way in am: port gist Ne, Best Rice - i fees pipe connection with land is equivalent te tne use of the f Baht FE ae sora trespass, = must sate it clear tnat i do not H peat he | By st- Bees Beeps ees mean that tresyass nas deen proved, -kat 2 Wave Laie ? : , Bes real . ir Fett soe : HI Be! gs censidered bere is tersizology instead of proof. | + ae Be : if “Nelterta; . > The core'éf the judgment of the Court deloy is 1 Wigned contained in tie words - i a . i | Bes Ge . + ° Belted "I find the plaintiffs Gase tore f « Et Gaal . daselon suc unreliale founnation Hf $ a oe that it ~rould de praats to make the 1 ei) ee declaration and orders Geught.! ii ays cage ¥ ity Boye ee rs iy a i > So . | ) Tipe - |