Jones v Master & Registrar, 1972-73 ALR S.L. 402

5 10 15 20 25 30 35 40 SECTION 43 THE AFRICAN LAW REPORTS JONES v. MASTER AND REGISTRAR and ADMINISTRATOR-GENERAL Court of Appeal (Cornelius Harding, Tejan and Percy Davies, JJ. A.): November 8th, 1973 (Civil App. No. 23/71) [ 1] Civil Procedure-judgments and orders-enforcement-court cannot make order for enforcement of judgments and orders on application by motion: A court has no power to make orders for the enforcement of its previous judgment or order on an application by motion; th~ aggrieved party should seek execution in the ordinary way (page 408, lines 6-9). [ 2] Civil Procedure-judgments and orders-orders directed to Master and Registrar-although officer of High Court may receive instructions from all superior courts: Although the Master and Registrar is an officer of the High Court, all superior courts may make orders giving him directions (page 408, lines 11-13; page 409, lines 33-36). [ 3] Civil Procedure-Master and Registrar-responsibilities-although officer of High Court may receive instructions from all superior courts: See [2] above. [ 4] Civil Procedure-record-error in record-correction-courts have power to correct accidental errors in records so as to carry out their intention: All courts have the power to correct clerical errors, accidental slips and omissions in their own records at any time, on motion or summons with­ out an appeal, so as to carry out the intention and express the meaning of the court at the time when the order was made, provided the amend­ ment can be made without prejudice or on terms which preclude in­ justice (page 408, line 14- page 409, line 9). [ 5] Courts-Court of Appeal-procedure-error in record-has power to correct accidental errors in records so as to carry out intention of court: See [ 4] above. [ 6] Documents-registered documents-removal of record books from Registry-Registrar-General not precluded by Registration of Instruments Act (cap. 256), s.20(1) from removing Record Book of Conveyances from Registry without court order-court order directing delivery of Record Book to Master and Registrar for cancellation of entry need not expressly instruct removal: The Registration of Instruments Act (cap. 256), s.20(1) does not preclude the Registrar-General from removing the Record Book of Conveyances from his Registry in the absence of a court order and a court order directing that the Record Book should be delivered up to the Master and Registrar for cancellation of an entry and rectification of the Register need not expressly state that it might be removed (page 407, lines 24-40). [ 7] Land Law-conveyancing-registration of instruments-removal of record books from Registry-Registrar-General not precluded by Registration of Instruments Act (cap. 256), s.20(1) from removing Record Book of 402 JONES v. MASTER & REGISTRAR, 1972-73 ALR S.L. 402 C.A. Conveyances from Registry without court order-court order directing delivery of Record Book to Master and Registrar for cancellation of entry need not expressly instruct removal: See [6] above. The applicant moved the Court of Appeal for orders and 5 directions to enforce a judgment of the court. In earlier proceedings the Court of Appeal had ordered that the sale by "the Administrator" [sic] of certain property was void and that the indenture of conveyance purported to have been made in respect of the sale and :registered in the Record Book of Conveyw 10 ances kept in the office of the Registrar-General should be delivered to the Master and Registrar of the High Court for recission, cancellation and subsequent rectification of the Register. The applicant made every effort to see that the orders were complied with, but the Administrator and Registrar-General refused to 15 remove the Record Book from his registry and deliver them to the Master and Registrar without an order of court. The applicant then applied by motion to the Court of Appeal for such orders and directions as would enforce the previous judg- ment of the court. 20 He contended that the Administrator-General was wrong in asserting that the :Record Book of Conveyances could be removed from the registry only on the orders of a court. The first respondent contended that the court's power was limited to correcting an error in its own judgment, and that the 25 application should therefore fail as it was not seeking such correc- tion. He further contended that the original order was unenforce- able since it was directed to the Master and Registrar who was and is not an officer of the Court of Appeal. The application was dismissed but the court amended the orders 30 made in the previous proceedings by substituting the title "Admin­ istrator and Registrar .. General" in place of the titles "Adminw istrator" and "Registrar-General" wherever they occurred in the orders. Cases referred to: (1) General Share & Trust Co. v. Wetley Brick & Pottery Co. (1882), 20 Ch. D. 130; 46 L.T. 70. (2) In re Jones (Dcd.), 1972-73 ALR S.L. 122. (3) Kabia v. Kanu, Court of Appeal, Civil App. No. 25/71, unreported, applied. 403 35 40 THE AFRICAN LAW REPORTS (4) In re Swire, Mellor v. Swire (1885), 30 Ch. D. 239; 53 L.T. 205. Legislation construed: Court of Appeal Rules (Laws of Sierra Leone, 1960, cap. 7), r.37: 5 The relevant terms of this rule are set out at page 408, lines 20-22. Registration of Instruments Act (Laws of Sierra Leone, 1960, cap. 256), s.20(1): The relevant terms of this section are set out at page 407, lines 32-35. Rules of the Supreme Court (England), 0.20, r.11: 10 The relevant terms of this rule are set out at page 408, lines 24-27. Fewry for the applicant; Tejan-Cole for the first respondent. The Administrator-General appeared in person. 15 TEJAN, J.A., delivering the ruling of the court: The applicant in this matter has moved this court for orders and direct~ons "as shall enforce" the judgment of this court in Civil Appeal No.23 of 1971 entitled In re Jones (Dcd.) (2). The orders in the judgment of this court were that - 20 "(1) The sale by the Administrator of No.7 Pultney Street by private treaty is void and of no effect. (2) The indenture of conveyance purported to have been made in respect of the said sale dated May 5th, 1969, and expressed to be made between the Administrator 25 and Abdul Osman Thomas and registered as No.225 in Vol.235 at p.95 of the Record Book of Conveyances kept in the office of the Registrar-General be delivered up to the Master and Registrar for rescission, can­ cellation, and subsequent rectification of the Register. 30 (3) The Administrator do sell the property No.7 Pultney Street to the beneficiary Priscilla Jones at the price of Le10,000 within the period of three months from the date of this judgment; failing which, to any of the other beneficiaries within a further one month; failing which, 35 by public auction at a price of not less than a reserved price of Le10,000: the proceeds of sale to be paid to the Administrator for distribution amongst the beneficiaries according to law after deducting any necessary fees and stamp duty. 40 The appellants are entitled to costs, such costs to be taxed and paid by the Administrator." 404 JONES v. MASTER & REGISTRAR.l972-73 ALR S.L. 402 C.A. The notice of motion filed on behalf of the applicant is sup­ ported by an affidavit sworn to by E.T.E. Fewry, Solicitor, and it also seeks "such relief to the applicant as may be just." It appears from the affidavit sworn to by Mr. Fe wry that he had made all efforts to see that the orders were complied with. In 5 this connection, I shall refer to certain letters between the Master and Registrar, Mr. Fe wry, the Administrator and Registrar-General and one Mr. Abdul Osman Thomas. By letter dated January 6th, 197 3, the Master and Registrar wrote to Mr. Fewry in the following terms: 10 "B.M.O. Jones, and another v. The Administrator-General. Civ. App. 23/71 I wish to refer to your letter dated January 4th, 1973, enquiring whether the conveyance in the above matter has been rescinded and cancelled, and whether the Register has 15 been rectified in compliance with the order of the Court of Appeal. I attach hereto copies of correspondence relating to this matter. It will be seen that the conveyance has not been delivered up to me for compliance with this order." 20 It should be noted that this letter was copied to the Administrator and Registrar-General. The following are the copies of correspondence referred to in the letter dated January 6th, 1973 by the Master and Registrar. (1) Letter dated August 24th, 1972 addressed to Abdul Osman 25 Thomas and copied to the Registrar, Court of Appeal and the Administratec-General. This letter is as follows: "I have to refer to letter No.C.A. 12/67/2 of August 5th, 197 2 from the Registrar, Sierra Leone Court of Appeal, addressed to you and copied to me amongst others on the 30 above, and to say that up to the date of writing you do not seem to have complied with para.(2) of the letter under reference. If you have not already done so, I shall be grateful if you will take action immediately as I am in duty bound to report to the Sierra Leone Court of Appeal within the shortest 3 5 possible time.'' (2) Letter by the Master and Registrar dated November 22nd, 1972 and addressed to the Administrator and Registrar-General and copied to the Registrar, Court of Appeal and to Mr. E. T .E. Fe wry, Solicitor. This letter is as follows: 40 "1. I have to refer to the judgment in the above case at the 405 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS Court of Appeal in which that court ordered inter alia that - 'The indenture of conveyance purported to have been made in respect of the said sale dated May 5th, 1969, and ex~ pressed to be made between the Administrator and Abdul Osman Thomas and registered at No.225 in Vol.235 at p.95 of the Record Book of Conveyances kept in the office of the Registrar-General be delivered up to the Master and Registrar for recission, cancellation, and subsequent rectification of the Register.'~ 2. I am to request that the Record Book of Conveyances, Vol.235, containing the conveyance expressed to be made between the Administrator and one Abdul Osman Thomas and registered as No.225 at p.95 thereof, be delivered to me, for compliance with the terms of the order as set out in para.1 of this memorandum. 3. Please treat with the greatest urgency." ( 3) Letter by the Administrator and Registrar-General dated November 23rd, 1972 addressed to the Master and Registrar. This letter is as follows: "I have to refer to your memorandum No.J.102/72 of November 22nd, 1972, and to state that having regard to s.20(1) of the Registration of Instruments Act (cap. 256), I cannot remove Record Book from my Registry without an order of court so directing. I am to observe that the order quoted in your memorandum under reply does not in any way direct that the Record Book of Conveyances should be delivered up. It only states that the indenture of conveyance be delivered up for recission and cancellation, and subsequent to that, rectification of the Register. I am to state that such subsequent action can be taken without the Record Book leaving my Registry, after due noti~ fication has first been given to me that recission and cancel­ lation action has been carried out on the indenture of con­ veyance." It seems to me that the difficulty which the Administrator and Registrar-General has encountered in this matter with regard to the compliance with the order of the appeal court lies in the construction or interpretation of order No.2 which states "The indenture of conveyance purported to have been made in respect of the said sale dated May, 5th, 1969, and expressed 406 JONES v. MASTER & REGISTRAR. 1972-73 ALR S.L. 402 C.A. to be made between the Administrator and Abdul Osman Thomas and registered as No.225 in Vol.235 at p.95 of the Record Book of Conveyances kept in the office of the Registrar-General be delivered up to the Master and Registrar for recission, cancellation, and subsequent rectification of 5 the Register." Unfortunately, The Administrator and Registrar-General has -grossly misconstrued order No.2- to mean the indenture of con­ veyance now in the possession of Abdul Osman Thomas. Order - No.2 when read carefully, simply means that the Record Book of 10 Conveyances together with the office copy of such conveyance which is kept in the office of the Registrar-General and in which the indenture of conveyance purported to have been made between the Administrator and Abdul Osman Thomas is registered, is to be delivered up to the Master and Registrar for recission, cancellation, 15 and subsequent rectification of the Register. In view of my con­ struction, the Administrator and Registrar-General is compelled under order No.2 to deliver to the Master and Registrar the Record Book of Conveyances and the office copy of such convey- ance in which the indenture of conveyance purported to have 20 been made in respect of the said sale dated May 5th, 1969, and ex­ pressed to be made between the Administrator and Abdul Osman Thomas has been registered. I have been unable to find any law which prevents the Admin­ istrator and Registrar-General from removing record books from 25 his registry. In his letter to the Master and Registrar the Admin­ istrator-General states that "having regard to s.20(1) of the Regis­ tration of Instruments Act (cap. 256), I cannot remove Record Books from my Registry without an order of court .... " Here again, there has been on his part an incorrect interpretation of 30 s.20(1) of the Registration of Instruments Act (cap. 256). This section enacts that ~ "the Registrar General shall keep such registers as may be prescribed, and subject to the provisions of this Act, he shall register therein all instruments required to be registered and delivered to him for registration." It is a wonder 35 that such provision can be interpreted as "prevention from removal of record books without an order of court." However, order No.2 is clear. The order says that the Record Book kept in the office of the Administrator-General is to be delivered, and this, in my opinion is a sufficient order of court. 40 With regard to the letter addressed to Abdul Osman Thomas, 407 THE AFRICAN LAW REPORTS I think it ·was unnecessary for the Master and Registrar to write the letter. Abdul Osman Thomas has never been a party to the action. The indenture of conveyance in his possession is of no effect since it has become void and of no effect from June 23rd, 5 1972, the date of the order of this court. Mr. Fewry 's motion seeks for such orders and directions as shall enforce the judgment of this court. With respect to Mr. Fewry, this court cannot make an order for the enforcement of judgments and orders. There are various forms of execution open to him. 10 Mr. Tejan-Cole, arguing against the motion, submitted that the application was not to correct an error. He further submitted that the order was unenforceable since it was directed to the Master and Registrar who was and is not an officer of the Court of Appeal. I agree with Mr. Tejan-Cole that the application is not to correct 15 an error. But where this court finds that an error has been made in its order or judgment, this court has an inherent power to correct the error. A case in support of this is Kabia v. Kanu (3). In this case, the court corrected its error and in the judgment, Cornelius Harding, J .A. referred to r .3 7 of the rules of this court. This rule 20 prescribes that - "the Court shall not review any judgment once given and delivered by it save and except in accordance with the practice of the Court of Appeal in England." His lordship also referred to 0.20, r.11 of the Rules of the Supreme Court in England, which states that - "clerical mistakes in judgments or 25 orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal." His lordship then proceeded to refer to some English authorities on the subject. These authorities include In re Swire, Mellor v. Swire, (4) where Bowen, L.J. said 30 (80 Ch.D. at 247; 58 L.T. at 208): "I think the true view is, as stated by the Lord Justice Cotton, that every Court has inherent power over its own records as long as those records are within its power, and that it can set right any mistake in them. It seems to me that it 35 would be perfectly shocking if the Court could not rectify an error which is really the error of its own minister. An order, as it seems to me, even when passed and entered, may be amended by the Court so as to carry out the intention and express the meaning of the Court at the time when the order 40 was made, provided the amendment be made without pre­ judice or on terms which preclude injustice." 408 JONES v. MASTER & REGISTRAR, 1972-73 ALR S.L. 402 C.A. In this same case, Lindley, L.J. said (30 Ch.D. at 246; 53 L.T. at 207): "There is no magic in passing and entering an order as to deprive the Court of jurisdiction to make its own records true, and if an order as passed and entered does not express 5 the real order of the Court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right, but must go to the House of Lords by way of appeal." In the case of General Share & Trust Co. v. Wetley Brick & 10 Pottery Co. (1) Jessel, M.R. said (20 Ch.D. at 130; 46 L.T. at 70): "The proper course as regards orders of the Appeal Court, equally with those of a Court of first instance, is for the party who is dissatisfied with the order as settled to give notice of motion to vary the minutes. The Court will then 15 be enabled to know how to deal with the costs of the appli­ cation." In the application before this court, the applicant is seeking for orders and directions to enforce a judgment of this court. I have said earlier, that this court cannot give such orders and directions. 20 But since the matter has been brought before this court, this court has discovered slight errors in the orders, errors which refer to "Administrator" instead of "Administrator and Registrar­ General." This court therefore amends the order dated June 23rd, 1972 to this extent, that is, the title "Administrator and Registrar- 25 General" to replace the titles "Administrator" and "Registrar­ General" wherever they occur. Mr. Tejan -Cole further argued that the order could not be enforced because it was directed to the Master and Registrar who was and is not an officer of the Court of Appeal. Frankly, and 30 speaking for myself, I am astonished that such a ludicrous argu- ment should be presented to this court by no less a counsel than Mr. Tejan-Cole. It is my view and I think I am right, that every court can make an order giving directions to the Master and Registrar who is a very important official in the Judicial Depart- 35 ment. In fact, order No.2 can be enforced except for the technical error of referring to Administrator and Registrar-General as Administrator. Since the error has now been amended, I cannot see any reason why the applicant cannot now compel the Admin­ istrator-General to comply with the order. There are methods by 40 which failure or refusal to carry out orders of court can be dealt 409 5 10 15 20 25 30 35 40 SECTION 44 THE AFRICAN LAW REPORTS with, and I am certain Mr. Fewry is well familiar with them. The application is therefore dismissed. There will be no order as to costs. Application dismissed. KAMARAv.THESTATE Court of Appeal (Tejan, Agnes Macaulay and Beccles Davies, JJ. A.): November 8th, 1973 (Cr. App. No. 5/73) [ 1] Criminal Procedure-appeals-appeals against conviction-miscarriage of justice-for purposes of Courts Act, 1965, s.58(2) judge's wrong direction on law or fact justifies quashing conviction unless on correct direction only reasonable verdict is guilty: When a trial judge has directed the jury wrongly on a point of law or has made a mistake of fact or omitted to mention a point in favour of the accused, the conviction should be quashed on appeal unless the case can be brought within the Courts Act, 1965, s.58(2) on the ground that no substantial miscarriage of justice has occurred since, on a correct direction the only reasonable and proper verdict would be one of guilty (page 420, lines 7-35). [2] Criminal Law-wounding with intent-elements of offence-grievous bodily harm means really serious bodily harm: The meaning of the expression "grievous bodily harm" in the Offences against the Person Act, 1861, s.18 is the ordinary and natural meaning of really serious bodily harm (page 418, line 22- page 419, line 11). [3] Criminal Law-wounding with intent-elements of offence-intent­ responsible man committing unlawful voluntary act aimed at com· plainant taken to intend natural and probable result of grievous bodily harm-proof of actual foresight immaterial: The test for the intent necessary to convict of wounding with intent is what an ordinary respon­ sible man would have contemplated as the natural and probable result of his acts, so when an accused commits an unlawful voluntary act, clearly aimed at the complainant, of such a kind that grievous bodily harm is the natural and probable result, proof of his actual foresight of the consequences is unnecessary (page 416, line 36 -page 417, line 6; page 417, lines 13-16). [ 4] Criminal Law-wounding with intent-elements of offence-wound­ break in continuity of tissues of body caused by application of violence: For the purpose of the offence of "wounding with intent" a wound means an injury inflicted by violence on the part of the accused causing a break in continuity of the tissues of the body either internal or external (page 415, lines 13-36). 410