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ALEXANDER D. YASKEY V. THE PRESIDENT

JELR 86371 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]

Coram
DEANE, C.J.

Judgement

 DEANE, C.J. THE GOLD COAST COLONY.

This is a case stated for the opinion of the Court under section 4 of Ordinance No.9 of 1929. From the statement of the case and from the written judgment of the learned Chief Justice, which is referred to in the statement and attached to it, it appears that the Plaintiff sued the Defendants for the sum of £56 Is. The Defendants are persons who are entitled to the protection afforded by section 180 (1) of the Freetown Municipality Ordinance, 1927, which reads as follows: “A writ or process shall not be sued out against or served on the Councilor any member or officer thereof or any person acting in his aid for anything done or intended to be done or omitted to be done under the provisions of this Ordinance until the expiration of one month after notice in writing has been served on such Council, member, officer or person clearly stating the cause of action and the name and place of abode of the intended plaintiff and of his solicitor (if any) in the cause, and on the trial of any such action the Plaintiff shall not be permitted to go into evidence of any cause of action which is not stated in the notice so served, and unless such notice is proved the Judge shall find for the Defendant.” At the close of the Plaintiff's case on the trial of the action the Defendants’ Counsel submitted that the Plaintiff, having failed to prove service of the notice required by the section, the Defendants were entitled to judgment. To this contention the learned Chief Justice acceded, and entered judgment for the Defendants with costs, although the Plaintiff had contended that the Defendants could not claim the benefit of this defence inasmuch as they had not complied with the provisions of Order XIX Rule 7 of the County Court Rules by which the procedure of the Court in its summary jurisdiction is governed, and by which in effect it is provided that any defendant who intends to rely upon a special defence, which term covers and includes a defence by Statute, must file a notice of such intention five clear days before the return date of the summons.

The Plaintiff having subsequently applied for a new trial on the ground that the learned Chief Justice had misdirected himself on the law, the learned Chief Justice refused the application subject, however, to the opinion of this Court on the question whether or no he was “right in holding that a correct interpretation of section 180 (1) of the Freetown Municipality Ordinance, 1927, the objection raised by the Defendants was not a special defence of which it was necessary to give notice, but that it was part of the Plaintiff’s case to prove that he had given notice of his intention to commence the action ;” and it is on this question that the Court is asked in the case stated to express an opinion.

Now at the outset I must confess that on reading the case stated along with the judgment which is embodied with it, I found at first considerable difficulty in reconciling the one with the other. In the judgment the following passage occurs there is no definition of the term' statutory defence' but it is sufficient to say that I have no doubt that a defence “founded on section 180 (1) of the Freetown Municipality Ordinance, 1927, does come within that description,” and the question at once presented itself. How is this passage to be reconciled with the clear averment by the learned Chief Justice in the case stated that on a correct interpretation of this section 180 (1) the objection raised by the defence was not a special defence of which it was necessary to give notice. If the term special defence includes statutory defence, as seems to be conceded in the judgment, how are these statements to be reconciled? Counsel for the Defendants suggested that the word “not “had been inadvertently omitted in the judgment between does “and “come”; but that rough and ready way of meeting the difficulty does not commend itself to me, since, if I may respectfully say so, the learned Chief Justice would not have been likely to come to the conclusion that a defence founded on a statute and which but for the statute would not exist was not a statutory defence. The marginal note to section 180 (1) of the Ordinance is Provisions for protection of persons acting under Ordinance.” Were it not for that sub-section the Defendants could not invoke the failure of the Plaintiff to give notice of action in their defence and in my opinion, therefore, it is abundantly clear that it is a statutory defence and nothing else. The true explanation of the difficulty, it seems to me, is to be found in the qualification of the statement in the case that it is not a special defence by the additional words “ of which it is necessary to give notice.” In other words what I think the learned Chief Justice means is that while it is a statutory defence and therefore a special defence, it is not a special defence of which it is necessary to give notice. That this is in fact the true interpretation of the averment is, I think, also shown by a passage which follows that passage I have already quoted from of the judgment and which runs, “I held that the concluding words of the sub-section put the onus on the Plaintiff to prove that notice had been given, and that such proof not having been adduced by him, I was bound to enter judgment for the Defendants.

The position may, I take it, be summarised thus: The learned Chief Justice held (1) that the defence outlined in section 180 (1) was in fact a statutory defence, but (2) that it was taken out of the rule requiring five days’ notice being given by the Defendants that they intended to avail themselves of it by the concluding words of the sub-section which, in effect, negative the rule and throw the onus of proving notice of action on the Plaintiff, and make it necessary for the Court to give judgment in favour of the Defendants should the Plaintiff fail to discharge that onus.

Now as r have indicated I am in complete agreement with the learned Chief Justice that this is a statutory and therefore a special defence. By the Rules of Court the Defendant has to give five clear days notice if he intends to rely on a special defence, and the question therefore which this Court has to decide is whether the concluding words of section 180 (1) render nugatory the obligation of the Defendants under the rules to give notice of their intention to rely on this special defence. The learned Chief Justice in deciding that they did, relied upon the case of Wagstaffe v. Sharp 3 M. and . W. 521, which follows the decision in Shearwood v. Hay 5 A. G. E. 383. The circumstances of those cases were that an apothecary who sued to recover charges as an apothecary, and who failed at the trial to prove either that he was in practice as an apothecary prior to or on the 5th day of August. 1815, or that he had obtained a certificate to practice as an apothecary from the Master Wardens and Society of Apothecaries as required by section 21 of the Apothecaries Act 1815 (55 Geo. III. Cap. 194), was non-suited, Lord Denman, C.J. observed in Shearwood v. Hay (ut supra) “ The statute requires that before any person shall be allowed to recover charges made by him as an apothecary he shall prove that he was duly qualified. The Under-Sheriff held that the qualification was part of the Plaintiff’s title to recover, which the Statute made it imperative on him to prove and I think that ruling was right;” The Plaintiff’s title to sue depended on the statute, and he could not sue without bringing himself within its provisions.

In this case, however, the circumstances are entirely different. The Plaintiff’s title to sue is complete apart from the statute which so far from conferring on him the right to sue limits that right which he has already in favour of Defendants in the manner provided by the section and thereby allows them to set up that limitation as a defence in case Plaintiff does not observe the requirements of the section. It is true inded that in both cases the Defendant may be benefited by the Statute if it is not followed but the cases are of very different since in the Apothecary cases the statute was passed to confer a right upon the Plaintiff as a member of a class, while in this case the Ordinance was passed to provide protection for the Defendants.

The words therefore at the end of section 180 (1) of the Ordinance must, in my opinion, be read as having application only when the special defence which the sub-section provides for the Defendants has been pleaded according to the rules. The proof that the things prescribed in that sub-section have been done is not a necessary part of the Plaintiff’s case until he has received notice that the Defendant intends to avail himself of the special defence provided for him by the Ordinance. Then he must prove the facta probanda, and if he fails to do so the Court must find for the Defendant.

But it is said that in the cases quoted on behalf of the Plaintiff, viz: -Davey v. Warne 14 M. and W. 199 and Conroy v. Peacock (1897) 2 Q.B. 6 in which it was held that notice of the statutory defence must be pleaded, there are no words at all similar to the concluding words of section 180 (1), and it is true that in those cases there is no denite statement that judgment must be given for Defendant on Plaintiff failing to prove the notice required. But in the case of Law v. Dodd 17 L. j .M.C. 65 language is used which seems to me to be entirey parallel. In that. case it was provided by the Metropolitan Paving Act (57 Geo. III. Cap. 29) that no action should be brought against any person for anything done in pursuance of the Act until after 21 days’ notice in writing “and if it shall appear that such action was brought before 21 days’ notice was given” the jury should find a verdict for the Defendant, and it was held that the Defendant could not avail himself of a want of notice without specially pleading it. Thus, notice of that special defence was held necessary to entitle the Defendant to the benefit of the Statute, even though there was a positive direction to the jury to find for the Defendant if it appeared that action was brought before 21 days. So also in this case it is made incumbent on the judge, in the absence of proof of the prescribed notice, to find for the Defendant.

I find therefore, that the answer to the question propounded to this Court by the learned Chief justice viz:-“Whether he was right in holding that on a correct interpretation of section 180 (1) of the Freetown Municipality Ordinance, 1927, the objection raised by the Defendants was not a special defence of which it was necessary to give notice of his intention but that it was part of the

Plaintiff’s case to prove that he had given notice of his intention to commence the action” is in the negative. The Plaintiff is entitled to costs. McROBERTS, ACTING C.J. SIERRA LEONE. I concur. SAWREY-COOKSON, J. I concur.

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