John Hagan Another v Francis A John Another [1922] SLSC 4 (14 February 1922)

04 l4thl?t~ruury, I~ 'l'ITE ES'l'A'l'B UF Jl!:SHE D. P.AitKER (Deceased). 11122. JOIIX L. IIA.G.\.X and Another - Appellants . 1). FIL\.NCIS A.. JOHN and Others - Respondents. Ch·iginating Summons held not z)roper mode of dealin,g with lJllestions and matters 1·equiriny account, enquiry and relief. The facts of this case are sufficiently set out in the judgments. Cnsc stated by Purcell, C.J., in the Supreme Court of the Colony of Sierra Leone. Dtt1'ing for Appellants cites:- White Book, Order 55. rules :3 ancl

4. Rules of the Suptemc Court, Order 52, rule 1. 1 White Book, Order 54A, rule

1. A'. J. P. Jf. lJoston for Rc~pondents cites: \Yhite Book, Or1ler

72. C .. \SE S'r.ATED. 'rile following question is reserved for the opm10n of the Court of Appeal, viz.:- \ .. fhether ou the true ronstruction of the provi~io11S of ( h·tler 52 of the Rules of the Supreme C our! of Siel'l'a L(•one, 1 i ( is within tho competency of the :-aid Court to deal with the question~ and matters rPquiring- account, enquiry and relief as set out in the Originating- Summons hereto appended. (Sgd.) G. K. '1'. PURCELL, Chief J u.~/ ice. 1 Vol. lli, p. 415. • 55 1.'h<" following wa t.w Origin ating Summon~ in the case:- 19:!1 JI. K o.

1. IN TilE SUPRE:l!l~ C0\7RT OF THE COLOXY OF SIERUA LEOXE. In the Matter of the Estate of Jl.'sse David Parker (deceased). Between John Lawrence Hagan and Annie Marie Ecessami Ilagan, his wife - Plaintiffs, and Francis AUphonso John, )loses Thomas George Lawson, William Patriek Gollcy and Horatio Nelson Williams - Defendant s. (L.S.) (Rgd.) J. F . St. A. Fawcett. 5/7/21. Stamp lOs. J,et the Defendants, Francis A\lphonso John. of Walpole Street, Freetown, in the <'olony of Sierra T.eone, l!er<'hant, Jfoses Thomas George Law:-on. tt Charlotte Stret't, in Fr<"etown aforesaid. Superintendent of the n.'I tist Chur<'h. Fr<'e!own, William Patrick Golle~·. of Fo .. t Street. in Freetown aforesaid, Carpenter, and Horatio Xehon Williams. o£ Pademha Road, in Freetown afore:;aid, 1Ierrhant. the Executors and Trustees of the Will datNl the 28th day of Oc·toher, 1910, o£ the ahovr named J <'R~e lh1xicl Parker, latr of Fn•etown aforesaid, deceased, within <'ight days after the senice of this Summons on them, inclusive of the day of such serYice. c•nJN' an appearance to be entered for them to this Summons, whirh i..; ic;"ued upon the application of .John Lawrence Hagan. of Paclembn Road, in Freetown afore ":•i<l. ancl .\.,nnie 1Iarie F:t·e,,ami ITa!!an. his "·ife, of the !;ame pla<'r. who claim!' to be intrrested in the relief. sought as a clc\'isee ancl le~?atee and tl1e rcsilluar;v de,isee and le~?atce under thr \\.,.ill of the sajcl .T e~s" DaYicl Parker, deceased, for nn Order nncler i11e rules of tl1C' Suprrmc C'ourt of Juclicature, Order 55, rules 0 and 4, for tht' cld('rminaiion of the following questions :mel matters. and that thr following arrount, enquiry, and relief mn~· l1e taken, made and g-iwn. thnt is to say:-

1. An account of the personal estate not specifically be queathed of the Tec:tator .. Tess!' Da,icl Parker. decea~ed, in the hands of the Defendants. the F:xrrutor~ and Trustees of his Will, or in the hands of an;v otlH•r per~>on or persons by tl1e order or for the use of the defendants. A..'ID OTHERS v. JoHN A:XD OTHEBS. HAOAN AND OTHERS t•. .Jon.s AND OTII!!:RS. :)6 •

2. An account of the Tents and profits of the Testator's real estate devised to the female Plaintiff under the said Will received by the said Defendants or any other person or persons by the order or for the use of the Defendants. 3 . ..l.n enquiry of what the estate of the Testn tor consisted of at the time of his death.

4. An enquiry what parts (if any) of the 'rcslator's personal cstale are outstanding.

5. An account of what is due from the l)efen<lanls as sueh Executors and Trustees as aforesaid to the f<'mn 1<' Plaintiff as the resid uary legatee of the personal rstatc of lhe Testator.

6. Payment by the Defendants to tl1c 'Plaintiffs of what sllall appear to be clue to the female Plainti£1 on taking the lust mentioned account.

7. Payment and delivery forthwith h~· the Defendants to tl1e female Plaintiff of all the specific lrfracico;; to wl1ich she is entitled under the Will and all moneys spccifi<'all~· bequeathed to her under the said Will.

8. Whether the Defendants a~ Exeeutor s and Trustees as aforesaid haYe power under the said Will or otherwise and ought to sell the real e~bte of the Te .. tator, Xo. 5G. Pademba Road, Freetown, deYisecl under the said W ill to the female Plaintiff and Thomas John Parker. 9. llow the co~ts of thi<> application Oufrht to be borne? If necessary for an Order for administration of the real and personal estate of the said Testator. The Plaintiff, John Lawrence Hagan, sues as the husband of the female Plaintiff. Dated the 5th day of October, 1921. This Summons was taken out by Claudius Dyonisius Hotobah During, Solicitor for the above named Plaintiffs. The Defendants may appear hereto by entering an appear ance, either personally or by Solicitor, at the Master's Office, \V estmoreland Street, Freetown. NoTE.-!£ the Defendant s do not enter appearance within the time and at the place above mentioned, such Order will be 57 made and proceedings taken as the Judge may think just and expedient. To- CLAUDIUS DIONYSIUS TIOTOBAH DURING,

25. Charlotte Street, Freetown, Plaintiffs' Solicitor . FRANC'IS ALPHO~SO JOIIN, 1\IOSE~ THO)!AS GEORGE T,.\. "SO~, WILLIAM PATRIC'K GOLLEY, and llOR.\. TIO XELSO~ WILTJLDfS. I appoint Thursday, thl' 20th day of October, 1921, for the ht>nring of thi ~ Summons at 1.45 p.m. (Sgcl.) MICHAEL F . J. McDONNEL L, _4cting Chief h1-~tiN'. McDONNELL, Acting J. The question in this case stated is whether the Supreme Court can, on a11 Originating Summons, deal with questions and matters requiriu.g account. t>nquiry and relief . as set out in the Ol'iginating Summon s appended to the case. On the one hand it is urged that Order 521 of the local rules, which is a reproduction mutatis mutandis of Order 54.\ of the White Book, is the only provision in force in this Colony prescrib ing the purposes for which an Originating Summons may be employed, and that, in consequence, its use must be confined to applications for the construction of written instruments and declarations of the rights of th.e persons interested . On the other hand it is urged that Order 65, rule 2,z of the local rules imports Order 55, rules !1 and 4, of the Wl1ite Book into the practice of this Colony. Order 55, rule 3, enables the personal representatives of a deceased person, the t.rustees under any instrument and certain other interested persons to approach the Chancery Division for certain forms of relief or for the determination of certain ques tions, as are respectiYely set forth in sub-sections (a) to (9) of the rule in question. Order 55, rule 4, enables any of the person01 named in the last rull', by Originating Summons, to obtain orders for the administration of the real or personal l'Rtate of the deceased 1 Lac cit. 1 Vol. III, p. 436. v. JoliN AND OTRi&:RS. }I c ll<>Slo""KLL. .ACTI:OOQ J. HAGAN AND OTIIERS v. JonN .L.'m OTHERS . l\ICDOll~'l:LL, .>\01'1."0 ::r. 58 or o£ the trust as the case may be . It. will h<' S<'<'n that these two rules enable Orig-inating- Summonses to hP cntp l o~·ed for much wider purposes than are contf.>mplated undc'r Order 54\ of the W hite Book and 52 of our rules . One 1Hts to hear in mintl thE:' exart purport of our Order 65, rule 2, 1 the e""ential part;:; of wl1ic·lt an' ns follows:- " \\here no other pro>ision is made hy these rules or " b~· the Supreme Court Ordinmwe. 1!}04.:: or hy those por " tions of the .Judicature ~'""ct.; which applY to this Colon;v, '' the procedure and practice in for·(·(' in En~land on 1st "January . 1905. so far ·ts the~ c·n11 h<' conwni<'ntl~· app lied " to the circumstances of tlti-; Colon~·. sltnll lw in force in " the Supreme Court." It may be said with truth that the local rules are an abridg ment of ib e Whi te Book emhocl ~·inp; stwh of the provisions of the la.tter as were considered suitab le io a small Ool01ty. The words upon which I 1a:v stress in Order 65, rnlC' 2, nrc at. tltC' beginning, "where no othe1• zn·origion 7.~ mndt•," ancl at ihe end, "so far ns they cnn be conreniently npplierl to the r·irrumstances of this Colony." Now the legi slature in approving o\u rule" imE>rtcd in Order 523 a paraphrase of Order 5·h with its heacling- " D rdaratio n on Originating Summon<;," it in<;el'tecl in OrdE:'r !)1' a paraphrase of Ord er 54 with its heading- " Applieations and Proceedings at Chambers ' ' and omitted. I cnnnot hut suppose deliberately, the whole of OrclE:'r 55 with its headin!!' " Chambers in the Chancery Di>i sion," which i.;; -.;uh-cli>iclecl into paris. of "·hirh Part 2, beginning with rule 3. ha;:; '1 suh-heaclin~ " .\clmini~trnt i ons and Tru sts . Foreclosure and R edemption." Why 'Were ~ome Order" incluclPCl and oih<'rs omitted? The position of onr rules in rt:'lation to the <'Ontents of the Whit e Book of 1905, both of which are ~tatutory enactme nts subje ct to the rules of statutory inte rpt•etntion, iR analogous to the ensE' of n suhs<'quent statute re-enacting ~orne of the sections o£ a former stat ute , hut departing from its provisions in certain respect s. The presumption in sucl1 a cns<' i;:; thai the departure is intentional. One can 'Well believe that the proeed ure in Chancery Chambe rs was considered unsuitable to the llCNls of this Colony and that omission to providf' for it wns intentiona l. -------- 1 Vol. III, p. 436. z X ow Can. 205, Vol. II. p. 14U. 3Vol. ill, p. 415. •Yol. JIJ, p. 413. 59 To inlcrp!'et Order G5, rule 2. in l'Uch a "·ay as to enab le nny pro>isi >n cmtlainecl in the White Hook o£ 1905 to hi" app lied here would. iu m~· opinion, leacl to an ahsurdit~·. h~ making the prc eedin g-fi40rder~' !>f om rule:. a supt rftuous redundancy, and would be repugnant to the p rinci ple o£ se]('cfion of EngliHh Order s suit able to local use, upon v.hich ont• rules appenr elearly to be based . When the draftsm:m ha,, ns we must !'Uppose deliberately, inserted one form of proreclurc under Originating Summons we cannot, I hol d, undPr Order 65, rnl<' 2. import all the remaining forms, on the grouncl that " no othE>r pro\·ision is made " by our .rules; .mel when th<• clraitsm:m bas, as we must again suppose, deliberatl"l~· omitte 1 II c whole c£ Orcler 55 dealing with chambers in the Chan<'ery ))iYi-.iou, "WE:' must, I hold , refus<' to import any of its rule~ on the ground that. to usc the words of the conclusion of Orcl<'r G5. rule 2. the~· l'annot "he ronYenie ntly applied to the eircumstanct"s o£ thi" C'olony." For tht"se rea~on,_, albeit. it l1as been ~uhmittt"d that at a former ~'lilting of the Pull Court a rontrary opinion was expre~~e d on grounds 'd1ich nrc no t set forth on the record, I hold that the an!nv-er to the easp statecl must he in the neg'ative. PURCF.T,L, C.J. I agree. RA WREY-C'OOKRO:Y. J. I agree, but think I might usefully add that I had no doubt after hearing )[r. Dur ing's argumPnt that Orcler 65, rule 2, operated so a~ to admit of reeoursp h<>ing- had to o,·der 55, rule 4, of the " .,.hite Book. dE>spite the fact of tl1e omi,sion o£ the whole of that Orcl~r from w-h:tt may he refent•:l to a<::" The Local Order:;." It appE>ared to me, indeed . that the words in Order 65, viz., "Whe1·e no other provision i;:; mncle, etc ." mu:o<t mean, j£ they "'·ere to mean anything at all . that if it is found tl1at certain o£ the machinery supplied b~· the \\hite Book is required and can conwniently be anpliecl here. then h_,. all means have recourse to it, although you rna~' fincl no re£erenc•e whatever to it in the local Orders. But I am no lon~er free from tbi!' doubt when I consider, and am farE'rl b~-. the £art that hoth of the loeal Onler~. X os. 51 and 52, 1 do rlearly makE' provision for t hi" disposal of se\eral matters by wa~· of Originating Summonsel'i. ------------------------1 Vol. III, pp. 413 &

415. HAOAN ..L"D OTHERS t•. JoHN ..L"'D OTREJIS. .!t!ODONNBLL, ACTING J. ASD OTII&RS t•. JonN .\ND OTU&RS. !\_~\\'l!EY· ('.()<l t;sON, J. 60 When, therefore, it is found that provision is made £or pro ceeding by way o£ Originating- Summons in certain respects and matters, it surely cannot be held that the condition required to be satisfied before the \\'~"bite llook is resorted to and comprised in the words, " Wher e no other pro,ision is made by these rules," has been compliecl with. I agree, therefore, that the whole o£ Order 55 o£ the White Book was intentionally omitted, and that the question~ and matter~ here sought to be dealt with by Originating Summons must be dealt with by a method which the legislature must be taken to have decided in it._ wisdom was the better suited to the require ments and con,enience of this Colon~·. i.e., by administration !'Ult.