Jones v Sierra Leone Diamonds Ltd, 1972-73 ALR S.L. 117

SECTION 18 JONES v. SIERRA LEONE DIAMONDS LTD., 1972-73 ALR S.L. 117 JONES v. SIERRA LEONE DIAMONDS LTD. High Court (During, J.): June 13th, 1972 (Civil Case No. 362/70) H.C. [ 1] Civil Procedure-appearance-conditional appearance-failure to attempt to set aside writ after entering conditional appearance does not waive right to argue absence of jurisdiction: A defendant who, after entering a conditional appearance, fails to take proceedings to set aside the writ, does not thereby waive his right to submit to the court that the action ought not to be entertained for lack of jurisdiction (page 121, lines 3-10). [ 2] Civil Procedure-jurisdiction-absence of jurisdiction-party may contend no jurisdiction even though does not attempt to set aside writ after entering conditional appearance: See [ 1] above. 5 10 [ 3] Courts-High Court-civil jurisdiction-workmen's compensation-no original jurisdiction in absence of President's order under Workmen's 15 Compensation Act (cap. 219), s.3(1), conferring jurisdiction: In the absence of an order of the President under the Workmen's Compensation Act (cap. 219), proviso to s.3(1), the High Court does not have original jurisdiction over compensation claims under the Act; a claimant who maintains that his award is inadequate should apply to a magistrate's court for a declaration under s.S of the Act that his injury has resulted 20 in a higher degree of disability than that specified in the Act for an injury of that type and that he is therefore entitled to more compen- sation (page 121, lines 11-32). [ 4] Courts-magistrates' courts-jurisdiction-civil jurisdiction-claims under Workmen's Compensation Act (cap. 219)-dissatisfied claimant should seek redress in magistrate's court not High Court: See [3] above. 25 [5] Employment-safety-claims under Workmen's Compensation Act (cap. 219)-dissatisfied claimant to seek redress in magistrate's court-High Court has no original jurisdiction unless order mlide under s.3(1) of Act: See [ 3] above. The plaintiff brought an action against the defendants for com­ pensation under the Workmen's Compensation Act (cap. 219). The plaintiff, employed by the defendants as a diamo.nd pol­ isher, was injured and lost the use of the index finger of one hand. 30 The hand was rendered useless for the work he was employed to 35 do and the defendants terminated his employment. Under the Second Schedule to the Workmen's Compensation Act (cap. 219) the percentage disability caused by the loss of an index finger is 10% and the defendants paid compensation on that basis although their doctor, when assessing the plaintiff's disability, took account 40 of the fact that it had resulted in the loss of his job and assessed it at 30%. 117 THE AFRICAN LAW REPORTS The plaintiff brought the present proceedings claiming the difference between the compensation already awarded under the Act and the award he would have received if the assessment of the defendants' doctor had been acted upon. The defendants entered 5 a conditional appearance to the writ but did not subsequently attempt to set it aside. However, in court the defendants contended that the court had no jurisdiction to entertain the claim since the effect of s.3(1) of the Workmen's Compensation Act (cap. 219) was that the only 10 court having jurisdiction was a magistrate's court. Alternatively, they contended that, by virtue of the proviso to s.8 of the Act, a higher level of compensation than that prescribed in the second schedule could not be awarded unless a magistrate's court first made a declaration that a higher degree of disability had been 15 suffered by the plain tiff, which had not been done in this case. In reply the plaintiff contended that the Act did not oust the original jurisdiction of the High Court and that the defendants had waived their right to submit that the action ought not to be entertained since, after entering a conditional appearance, they 20 had not taken proceedings to set aside the writ. The plaintiff's claim was dismissed. Legislation construed: Workmen's Compensation Act (Laws of Sierra Leone, 1960, cap. 219), 25 s.3(1), as amended: 30 35 40 The relevant terms of this sub-section are set out at page 120, lines 2-5. s.8(1), as amended: The relevant terms of this sub-section are set out at page 120, lines 7-14. s.23(1), as amended: The relevant terms of this sub-section are set out at page 120, lines 17-19. s.23(2), as amended: The relevant terms of this sub-section are set out at page 120, lines 21-25. Courts Act, 1965 (No. 31 of 1965), s.18(2), as amended: The relevant terms of this sub-section are set out at page 120, lines 32-37. Gelaga-King for the plaintiff; S.H. Harding for the defendants. DURING,J.: The plaintiff in this action claims the sum of Le720.68, the balance of the amount alleged due to him under the Workmen's 118 JONES u. SIERRA LEONE DIAMONDS LTD., 1972-73 ALR S.L. 117 H.C. Compensation Act as compensation for injuries sustained at work on or about July 16th, 1969 whilst he was at work in the defend­ ants' premises, employed by the defendants as a diamond polisher. The plaintiff, on the termination of employment by the defendants as a result of disability suffered to his index finger, was paid the 5 sum of Le360.32, the equivalent of 10% disability according to the Workmen's Compensation Act, for the injured finger. The plaintiff gave evidence before this court in support of his claim and said in evidence that according to the report of the company's doctor disability ought to be assessed at 30%. A letter containing 10 the report of the company's doctor was admitted in evidence before this court and Dr. Thomas, the company's doctor, gave evidence on behalf of the plaintiff. He stated that he assessed disability at 30% and that he still stood by his opinion. Under cross-examination by Mr. Harding, the doctor said inter 15 alia: "The percentage disability for the loss of index fingers is 10% according to the Workmen's Compensation Act in operation in Sierra Leone. Taking into consideration the man's specific job when he sustained the injury, the loss of the index finger 20 renders the whole hand useless with regard to that particular job and as a result he lost the job. It was on that basis that I assessed his disability at 30%." After the close of the case for the plaintiff, the defendants through their counsel, Mr. Harding, submitted that this court has 25 no jurisdiction to entertain this action, or in the alternative under s.B of the Workmen's Compensation Act (cap. 219) this court has no power to award the amount claimed by the plaintiff in this action. He submitted that the percentage disability caused by injury to a finger is specified under s.8 of the Workmen's Compen- 30 sation Act as amended by s.6 of the Workmen's Compensation Amendment Act, 1969. He referred me to the Second Schedule of the Workmen's Compensation Act (cap. 219), which specifies the percentage of disability due to loss of index finger at 10%. He submitted that until a magistrate's court makes a declaration that 35 a higher percentage of disability than is awarded under the Work­ men's Compensation Act has been suffered, or the plaintiff applies to the court, a higher percentage than that specified in the Schedule to the Workmen's Compensation Act could not be awarded. He referred me to s.B of the said Act and also s.3 of the 40 Act defining the word "court". Section 3(1) of the Act, as amended, 119 THE AFRICAN LAW REPORTS reads: " 'Court' means a magistrate's Court: Provided that the President may by order declare that in any area or for any case or class of cases proceedings under 5 this Act may be brought in any other Court." The proviso to s.S of the Act reads: "Provided that where the injury has particular consequences, having regard to the special nature of the workman's occuw pation, and the Court, upon application by the workman, 10 considers that the percentage representing the loss of earning capacity which would otherwise have been determined is clearly inadequate, the Court may declare such workman to have incurred such higher degree of incapacity as it deems equitable." 15 Section 23 of the Act makes provision for appeals to the High Court. Section 23(1) of the Act, as amended, reads: "Subject to the provisions of this section and of section 13 an appeal shall lie to the High Court from any order of the Court." 20 Section 23(2), as amended, reads: "Except with the leave of the Court or of the High Court (which shall not be granted unless in the opinion of such Court some substantial question of law is involved in the appeal) no appeal shall lie if the amount in dispute is less 25 than fifty pounds." In reply to the submission of Mr. Harding, the plaintiffs through their solicitor, Mr. Gelaga-King, submitted that nowhere in the Act is the jurisdiction of this court ousted. He submitted that in this matter this court has both original and supervisory jurisdiction. 30 Learned counsel referred me to the Courts Act, s.18(2) which reads as follows: "Except as provided in subsection (2) of section 7 and section 19 or its jurisdiction is expressly excluded by an enactment, the High Court shall exercise unlimited original 35 and supervisory jurisdiction in all causes and matters in the same manner and with the same powers and authorities as immediately before the commencement of this Act." Mr. Gelaga-King also submitted that the submission of the defendw ants' counsel ought not to be entertained as the defendants had 40 earlier entered a conditional appearance and did not take steps to set aside the writ and or service thereof. He referred me to The 120 JONES v. SIERRA LEONE DIAMONDS LTD., 1972-73 ALR S.L. 117 H.C. Annual Practice, 1957 at 145 and O.LXX r .2 with the notes at 1601; also to the High Court Rules (cap. 7), as amended, O.L and submitted that the entering of a conditional appearance not followed by proceedings to set aside the writ or service thereof was a waiver of the right to make submissions to this court that 5 the action should not be entertained. With respect to learned counsel I do not agree that failure to set aside the writ or service thereof amounts to waiver of the right of the defendants to make a submission to this court that this action ought not to be enter- tained. 10 If the plaintiff is of the opinion that the amount awarded under the Workmen's Compensation Act is inadequate he should first go to the magistrate's court in my judgment and ask for a declaration that the amount be increased as provided by s.S of the Workmen's Compensation Act. If he is dissatisfied with the decision of the 15 magistrate's court, s.23 gives him a right to appeal to this court subject to the proviso to the section and s.13 of the Act. I hold that this court has no original jurisdiction. The rights, remedies and duties provided for in the Act are creatures of statute. As to which tribunal should in the first instance deal with 20 a matter such as that brought before this court, the legislature made it clear in the Act that" 'Court' means magistrate's Court". The proviso to s.3(1) of the Act does not apply in this case. The action brought by the plaintiff in my judgment was incompetent at the date of issue of the writ herein. The plaintiff should exhaust 25 all his rights and remedies given by the Act to get redress in the magistrate's court. If, however, he is dissatisfied with the decision of the magistrate's court he could then come to this court by way of appeal under s.23 of the said Act. I uphold the submission of the defendants' counsel that this action ought not to be enter- 30 tained and I accordingly dismiss the action. I order that each party bears his own costs as between solicitor and client. In the light of the evidence given by the defendants' doctor, Dr. Thomas, this is a matter I think could possibly be settled amicably out of court. 35 Suit dismissed. 40 121