Maximilian Dawson v Alfred Genet [1921] SLSC 1 (23 January 1921)

17 MAXIMIL I AX E"C"G EXE DAWSOX & ALFRED GEXBT t.lppellants. 'V. ESTIIER SHA \V - Respondent . Order on Originatin.r; .wmmons-Time of operation-Relief of one Acting Chief .hlStice by another . On 19th ::\Ia.y, 1919, :McDonnell, Acting C.J., made an m·der on an origi nating summons, the fom1al order on which was drawn up and signed by him on a subsequent day. Later in the same day as that on which th~ order was made, King-lt'arlow, .J., of the Gold Coast, arri\ ·ed in the Colony and took the oaths on assuming the office of Acting C.J. Held that the assumption of office of Kinv;-Farlow, .J., did not relate back to the first moment of the day upon which he took the oaths, and that an order on an originating summons dates from the day upon which it is pronounced . Appenl from an Order made b~· McDonnell, Ariin~ C .. T., in the Supreme Court of the Colony of Sierra Leone. A. J. Shorunl.·eh-Smc.';err for the .\.ppellan t cites : Eady v . Elsdon (1901), 2 K.B. at p. 4G7. In re Pear<'e (1899), ,Y.X ., p.

114. Graham for the Respondent . PURCELL, C.J. This is an appeal hom an Order dated 19th ) fay, 1919, made by the Actiug Chief ,J ustiee McDounell upon an originati ng summons for the det('rminntion of certaiu questions arising from the terms employed iu the will of tl1e late _.Joseph Jackson Shaw. I am satisfiNl tha.t at the time when )Ir. M<·Donnell made ihe order appealed ogninst in the present ease, he was still Acting Chief Justice, that. the arrival in the Colony of Mr . . Justice King-Farlow, ·who was to relieve him in that office, did not affect his status until :Mr. King-Farlow l1:td taken the oath o£ allegiance and th(' .Judirial oath before ITis Exrellency. 'l'hat Mr. Kin g-Farlow' s assumption to the Acting- C'hief Justice ship did not relate back to the first moment of the day upon which he took those oaths, but dated from the momeut at which he took them . Proc·eeclings commenced by an ori{?inating sum mons constitute an action (Annual P ractice, 1920, p. 8), an !!:lrd January 1!)·20. DAWSON & GENET tl. SIIAW. P'O'RCJtLL, C.J 18 order upou which dates from the day upon "·hich it is pro nounc·Pd, as was pointed out by the .\dingo ('hie£ .Ju~tice King-Farlow, as Counsel admits, on the hearing- of the :;ummons filed on 12th June. Finally, the signing of the formal order upon an originating summons is a ministerial and not a judicial act. ..As the usual procedure in interlocutory summonses has, by a mi~apprehension, hitherto been followed in originating sum mon~>es in this Colony, I hold that eac:l1 party should bear its own costs in this appeal. PKJ.'\~ I XGTON, J. I concur. McDONNELL, Acting J . I concur.