Kalim Nicholas v Boyawa [1922] SLSC 5 (14 February 1922)

33 KALil£ NI CIIOL.\.S - Appellant . 1) . - Respondent . tlPLJlication for special leave to app eal- Li'mitation of ti-me in zchich app eal may be lod!Jcd-A ction part heard in Circuit Cou1·t of Protectorate aucl transf erred by Govern01·'s Fiat to Supr eme Court of tlze Colony before the Circuit l1tdge when acting C.J . Tho facts of this case aro sufficiently ~; et out in the judgm ent. Application for spe<:ial leave to appeal from a judgment of Parodi, Acting C.J . in the Supreme Court of the Colony of Sierra Leone . Barl att for the Appell::mt states he has nothi ng t o add to his affidavit. De Hart, Lega l Assistant, for the Respondent cites : I nternationnl Corporation v . Moscow (1877), 7 Ch. D., p.

241. H ighton v . 'l'rehearne, 39 L .T.R ., p .

410. In re :Manchester Economic Building Society, 24 Ch. D ., p.

288. I n 1·e W igfull, IJ.R., Ch. D. (1919), p.

54. Collins t. Vestry of P addington, 5 Q.B .D. , p .

368. Curtis v . Sheffield, L.R. , 21 Ch., p.

25. R enner's Golcl Coast Reports, l>eregrin.o 1'. Spio, p. 226, Kuakue v . Boehm, p.

492. B arlatt in reply cites :- Supreme Court (Amendment) Ordinance, 1912 (No. 14 of 1912), Schedule, sec. 7.1 P URCELL , C.J. This is an appEr;ttion by )fr . Barlatt in behalf of lialim nicholas, Plaintiff in this action, for special l eave to appea l from a j u dgment delivered on tl1e 21st of August, 1921, by Mr. Justice Parodi sitting as Judge of the Circuit Court who happened at that time to be acting as Chief Justice of the Colony . In order to un derstand this matter aright I ~- ill first of all read the affidavit filed by Mr. Barlatt which reads as follows :- 1 Now Cap. 205, Soh., ace. 7, Vol. II, p. 1439. , .. ~ .SWOiaJ;IJ 14th 1/cbr ... ~ 1922. SORUliAOBliR & STRAUJIIANN v. ('· "'-~ ..... PUI\Cl!Lt , 0.1, 34 " I Samuel Josiah Sigismund Barlatt, Barrister-at-law and " Solicitor of this Honourable Court, make oath and say as '' follows :- " That the above aclion was commenced at the " Circuit Court of the Sierra Leone Protectorate, 1\Ioyamba, " on the lOth J anuar~·, 1921. "

2. That Iris Honour the Circuit Judge being under " an obligation to leave for }'rectown on official duties before " the completion of the hearing, it wa<; proposed that there " should be an adjournment sine die and that arrangements " should be made for its ('ompJ<'lion in Freetown . "3. That the furllwr !waring took plac·e in Freetown, " and final judgment wa,.; delin•red on the 21st dny of " August, 1921, in Freet own . "

4. That the Plaintiff was dissntisficd ancl nggrieved " at the said judgment and was most nnxious to exercise " his right of appeal. "

5. That the Plaintiff wa;; then in an impecunious con " clition, having l1ad to borrow his fare to re tum to the "Protectorate a£tcr tl1e );aid jndgnH' tl t, and was not in a "position, financ inll y, to institute proPt>Nling,; for the appeal "until after the time for doing :-;o at tlw C'ourt below had "expired. "6. That I was ach-i~ed and wrily helievE>d that the pro " visions of c;ectionc:; 7 to 9 of ihe Rclwclnle nttad1C<l io the "Rupreme Court Amendment Ordinance, 1912 (;\o. 14 of " 1912 1 ), provided an altemative totnse, and advised the " Plaintiff accordingly . "7. That in view o£ section 46 of tl1e Protectorate " Courts .Juri sd iction Ordinanre, 19032 , I experienred a " £urthe1· difficulty in making an application to the Circuit " Judg e in his capacity al the time of Acting Chief Justice " of the Colony o£ Sierra I~eone. "8. I am con>inred that the Plaintiff's grou nds for " appeal are good and substantial, and that the partial judg " ment in his favour ·was a virtual admission of the validity " o£ the Plaintiff's contention at the hearing. "

9. Tha t the points at issue are of the utmost import " ance as regards the interests o£ British subjects carrying " on bu~ine's in fhc Protectol'atc genera lly, and that a " further di~cus~ion of the questions invoh-ed before this " IIonourable Court would lead to a definite settling o£ a lNow Cap. 205, Soh., sees. 7 to 9, Vol. U, p. 1439. *Now Cap. 169, sec. 57, Vol. II, p. 1110. " great question o£ law about which much uncertainty at " present exists." I will proceed to deal seriatim with these grounds for grant ing special leave to appeal. now as regards the rlaintift's alleged impecuniosity, much as one regrets it, it can furnish no possible ground for this Court to grant the Plain tift' special leave to appeal. Impecuniosity as I understand it-and as I know from personal experience, is a grave disability to all those called upon to fight. the batlle of life in this sublunary sphere. So far as I am concerned I have often felt discontented at having to do without things which ( had l possessed it) money could buy for me. In a word money can command most of the good things of this world. E•en in such a commonplace thing as litigation a rich litigant is obviously in a better position than a poor litigant, as he is able to retain fashionable counsel and prosecute an appeal, if necessary, to the highe,;t iribunal in the realm. But impecuniosity has ne•er been held to furnish a litigant with any claim to indulgence such as is sought for here. In para. 5 of the affida•it Ur. Barlatt draws a pathetic picture of the Plaintiff' s retum to the Protectorate and of Iiis having had to borrow money to pay for his railway fare. It occurs to me that really he might ha>e walked. I have known many people better placed in the world than the Plaintiff who have had to do that by stress of circum«tanres . In £act I am not ashamed to say that I haw done it myself-! ha•e tried since reading this affidavit to conjure up before me the Plaintiff's state of mind as the train carried him past Cline Town and on past Waterloo up into the P rotectorate . One recalls those words of Virgil- " Sunt lacrimae rerum et mentem mortalia tang1mt " finely translated by the late :Matthew .Arnold- " the sense of tears in human affairs." This exodus apparently took place last .August so I trust that I am justified in asuming that during the interval things have prospered with the Plaintiff or otherwise he would hardly now be able to retain Counsel's services to make the present appli cation which, if successful, will entail a still further expendi ture. With regard to paragraph 6 of the affidavit I can only express my surprise that Mr. Barlatt is not better informed and instructed with regard to the practice regulating appeals and the time within which such applications must be made. ..... ':_~Y . l'URCT.U., C .• SCRUMAOUER & STBA.Uli!ANN _.,.l£LL, C.J. 36 Not only has this ~ppeal Court been in e:s:istcuce for nearly ten yean~ but the rules regulating these matters are perfectly well known and haYC on several occasio11s been discussed at length in this Uourt. In Renner'R Uold Uoast Reports, Vol I., page 313, this whole matter was dec·ided by the Full Cotut of the Gold Coasl (of which I was then a member) in the case of In re Amponduro 1". \Yereku. 'l'h E' decision in that case seems to me so important in this conned ion that I will read it:- " Interpretation of Appeal-Order or rule . ..ippeals. " On this malt.er of lime within which an appeal must " be e:ffcctualcd, we have come to the .Collowing conclu '' sions :- "

(1) Conditional lea>e mu-;t be applied for in three " months from the datr o£ decision on the merits, Order 52, "Rule

10. " {2) After this i!' clone, the conditions must be fulfilled " within one month from the date of application for con " ditional leave. The result of this is that if the con " ditional application be made on the last day of the three " months, the conditions must be fulfilled within four " months from date of decision on the merits. It has been " decided by the Full Court that the application for final " leave must be made b~· motion. We think that this motion " must be filed on, or before, the last day of the month " from date of appli cation for conditional leave, and when "the conditions hrwe been duly fulfilled. Seven days " after this the grounds of appeal must be filed. " We are quite certain that the object of the rules was '' to limit the time during which an appeal could be kept " hanging over a successful litigant's head, and during " which he could be kepi out o£ the fruits of his judgment. " If, ha>ing complied with the conditions, the motion for " final leaYe could be hung up during the pleasure o£ the " .Appellant, the Respondent could be so long kept out of " these fruits unless he gave security as provided by rule

13. " The usual rule is that the Respondent can proceed to " execution; the .Appellant must show good cause for the " ordering of security by the Respondent. " We are not quite sure that the rules originally con " templated a motion for final leave. We are inclined to " think that the conditions being complied with, the appeal " was made final or effectual and the grounds would have '' to be filed in seven days." 37 It is true lhat this dec:ision is not binding on this Court, but it is a decision by a Full Court on the construction of an Ordinance identical with our own Ordinance. There is also another decision of the Full Court of the Gold Coast giYen in another case and reported on page 223 of Vol. I. of Renner's Gold Coast Reports. That was a decision in Con cessions .Enquiry Nos. 164 and 169, with regard to Special Leave, and here again I will also read a portion of the judgment- " In giving its previous decision refusing special leave " to appeal, this Court after dealing with the foregoing " circumstances also had occa~ion to refer to the geneml " laxity and slackne~s displayed by certain practitioners " in this Colony, o£ which this "Was only a particular c.ase. " It pointed out that some practitioners habitually neglected " the ordinary opportunities giYen them by law, and " depended on the special jurisdiction of the Court, a juris " diction only to be exercised in special circumRtances. " There being no special circumstances shown in thi" case " other than the neglect by the practitioner in charge of the " •matter to take advantage of the ordinary opportunities " allowed him> this Court declined to grant the special " leave sought for. This Court haYing already exercised its " discretion, and having in my opinion exercised it "judiciously, and for substantial reasons, think that this " is not a case in which it ought to grant leave to appeal." These are decisions with '"hich Mr. BarlaU should be familiar. \Vith regard to para 7, I fail to understand how there could have been any difficulty in maldng the application to the Circuit Judge, which Mr. Barlatt states he experienced. This action was commenced in the Cin·uit Court and partly beard in the Protectorate, and then removPcl to Freetown by the Govern01·'s fiat and was concluded at Freetown, and Mr. Barlatt's proper course was to apply before the learned ,Judge sitting in Freetown, whoever he might be, within three months from the date of judgment £or leave of appeal. I regret that llr. Barlatt ha"> put forward such an excuse or has thought that on !'uch grounds this Court would grant his client special leave to appeal. As was said by Lord ,Justice Thesiger in the <:ase o£ Collins v. the Vestry of Paddington. 5 Q.B.D., p.

368. " In the interest o£ the public the Court ought to take " care 1L .ll appeals are brought before it in proper time . I h -.s.. .. ary Ptlll('f.I.L, \ , • . SOHUMAOUER • & . STRAUllANN .o .. t•.- l'11RCJo:LI., C.J • 38 " and as between the parties it has often been remarked , '' in the branch of this Court \vhich sits at Lincoln's Inn, " that when a judgment has been pronounced, and the time " for appeal has elapsed "ithoul appeal, the successful party " has a vested right to the judgment, which ought, except " under very sp<'rial circumslanres, to hr made effectual. "And I think that the Legislature iutend!'cl that appeals " from judgnwnts should he made 'Within the prescribed " time, and thai no exten-;ion o£ time should be granted " ex<'ept under very special ('ireumstances." 'rhe major portion o£ the prot raeted allocution addressed to us by ~fr. Barlatt was based on a principle which was enunciated by Lord Esher (then Sir Baliol Brett) )faster of the Rolls, in the case of In re )fanchester Economic· Building ::io('iety. 24 Ch.D., p . 228 : "'l'l1e Court has power to give the Special Leave, and exercising its judirial discretiou is bound to give the Spcrial Leave if justice requires that the leave should he given ." There are onl~· hvo objections to the arguments lir. Barlatt addressed us on that point : It supports a principle of praelice which has never been disputed and it is in m~· opinion utterly irrelevant to the present application. I have taken the trouhle since thi~ application was made to us to ascertain exartly wltat it was tltnt the Plaintiff claimed in this action and what the decision was. The Plaintiff's Claim was :- (i) For damages for trespass in that on or about the 5th cla~· of September, 1920. the Defendant entered his compound at Kangahun which the Plaintiff held as tenant to Professor J. Abayomi Colo and closed his well and ousted the Plaintiff therefrom .. . £50 10 0 (ii) For taking possession of his crops on the said land, that is, the product o£ 3 bushe ls o£ rice, 20 shillings worth o£ cocoa, 20 shillings worth o£ yam planted therein and about £12 worth of cassada plant valued in all . . . 40 0 0 (iii) For damages for causing the Plain tiff's shop to be closed and his business to be stopped from 5th September to 30th November, 1920, 74 days (exclusive of Sundays) at £1 per day 74 0 0 Total £ 164 10 0 39 Now, what dol's it all amount to. shorn of all the glamour and sentiment which :Mr. Barlatt has been able to invest it with? \Vell it really comes to this, that instead of obtaining £1G4 l Os. Od. Plaintiff recove:t:ed £30, and had to pay his own costs. We are told that this ·was a test case. Bl' it so, the test apparently was whethPr this man could be turned out of the Pro tectorate by a X aliYe Chief. and il has been decided that he could not be so turned out. so that point was decided in his favour . In point o£ £act this is not a test case nl all, but is merely an attempt by a person who has been disappoiulecl in failing to extract as large a sum of money from the c·offers of tl1e Government as he wi;;hed and hoped to do. to 1itigalp the matter further, and in order to enable him to do so, it has hcen urged upon us with great insistance that a gra•e act of injustice will ensue \mless we :tt'cec1e to this applic·ation. For myself I think the time has c·mtl<' when this Comt should speak with no uncertain voice on the question of these applications by a would-be Appellant who has merel~· nPglccted to take ad•antage of the machinery whi(·h the law allows him with re:rard to appealin:r. I think that this Court should let it be known that in futu1·e it will not, except under very peculiar and extraordinary circumstances, grant special leave to appeal. I do not think that this can be too widely understood or recognised. So far as the present application is concerned, and for the reasons I have already stated, I think that this application should be dismissed with costs. We desire to express our obligations to Mr. de Hart for the very great assistance he rendered to this Com·tl in so ably and lucidly marshalling all the necessary authorities. :llcDONNELL. Actin~ J. I concur. SA. WREY -COOKSON, J. I concur. ,. ' Bo'.. .J,.,.,I!tY. l'UllOELI., C.J'. ~