Winifred v Harris (S.C. APP. NO.1 OF 78)  SLSC 1 (16 February 1979);
IN THE SUPREME COURT OF SIERRA LEONE S.C. APP. NO.1 OF 78
WINIFRED E. - APPELANT
ROXY J. HARRIS - RESPONDENT
CORAM:- HON. JUSTICE E. LIVESEY LUKE - Ag. CHIEF JUSTICE
HON. JUSTICE C.A.HARDING - J.S.C.
HON. JUSTICE O.B.R. TEJAN - J.S.C.
HON. JUSTICE A.V.A. AWUNOR - RENNER- J.S.C.
HON JUSTICE S. BECCLES-DAVIES- J. A.
Mr. T.S. Johnson for Appellant
Mr. M. R.O. Garber and with him Mr. S. Hudson-Harding and
Mr. B.A.C. Johnson for Respondent.
JUDGEMENT DELIVERED THIS 16th DAY of February 1979
Tejan, J.S.C:- The events leading to this appeal can be briefly summarised as follows:- On the 24th day of March, 1976 the respondent filed a petition against the petitioner for dissolation of marriage. A conditional appearance was entered on the 30th day of March, 1976. An application was made to set aside the petition for some violation of the Natrimonial Causes Rules on the 4th day of May, 1976. This application was dismissed by Williams. J. The appellant, on the 5th day of May, 1976, on an ex parte application by summons applied for leave to appeal against the dismissal of his application. Leave was granted and on the same day, the appellant filed the order granting leave and also filed a notice of appeal in the Registry of the Court of Appeal. Shortly after the filling of the notice of appeal, the Respondent applied to the same Judge to set
he his order of 5th May, 1976. The Judge, having heard counsel for the Respondent in the absence of counsel for appellant, by order dated 11th May, 1976, set inside the former of 5th May, 1976. The appellant becoming aware of order of 11th May, 1976 applied to the Court of Appeal an extension of time within which to appeal. The application was granted by the Court of Appeal on the 22nd June 1976 and the Court ordered that all proceedings be payed until the appeal against the order of 4th May, 1976 be board and determined. On the 10th March., 1977 appeal against the order of 11th May, 1976 was heard determined by a differently constituted panel of the court of Appeal. The Court allowed the appeal and under order in these terms:-
"We order that the order made herein on the 11th day of May, 1976 setting aside the order herein made on 5th May, 1976, granting leave to appeal be set aside."
Passing, I think it is necessary to comment on this order the Court of Appeal since there had been no application challencing the correctness or otherwise of that order. I would have thought that the urge to challenge the order was irrestible. However since there had been no application to challenge that order, it follows that the order of 5th May is restored and is therefore subsisting.
On the 25th March, 1977, the appeal against the order 4th May, 1976 came before the Court of Appeal, and the respondent raised a preliminary objection, notice thereof dated 16th March, 1977 having been given and filled. On the 5th day of July, 1977, the Court of Appeal delivered its raling and the relevant portion reads:-
"I do not agree with Mr. Johnson that the words in section 56(1) (b) of the Courts Act' by leave of the judge making the order shall be taken to mean that an applicant should go by summons and not by motion. An applicant can go by motion or summons depending on the rule applicable and the procedure laid down. Even if it was proper to go before the judge who made the order by summons, justice would demand that he should not do so ex parte unless the Judge for good cause so directs. The other side ought to be heard. Rule 10(l) specifically states the procedure to be followed when an applicant applies for leave to appeal to this Court and this rule in my opinion must he strictly followed. The Rule making Committee in my view in their wisdom made this rule there being no other rule laying in, down the procedure to be followed when an applicant asks leave to appeal to this Court against an interlocutory order. I do no agree with Mr. Johnson that the order was properly obtained to entitle us to assume jurisdiction,notwithstanding the order has not been set aside or appealed against the respondent. I would hold that v,e cannot entertain the appeal, appeal, that is to say assume jurisdiction and hear the appeal and would dismiss the appeal".
It is against that ruling the appellant has appealed to this Court. There are four grounds of appeal but I do not consider it necessary to set then out. The following is a summary of the submissions which the appellant made in support of his appeal:-
(a)Whether jurisdictional power is confered on the Judge who made the order of 5th May, 1976 giving leave to appeal;
(b)Whether an application for leave to appeal can properly be make by summons;
(c)If the application cannot properly be made by summons, what is the effect of an order obtained by an application by summons.
Mr. Johnson submitted that once a judge has made an order granting leave to appeal, that order stands whether or not the application was made by suctions or motion. Mr. Garber on the other hand submitted that a Judge can only properly exercise his discretion to grant leave to appeal if the application is made under Rule 10 (1) of the Court of Appeal Rules, and that if the application was made otherwise than by motion, the discretion is not properly exercised judicially and the order is invalid. Section (1) of section 40 of the Courts Act has been repealed and replaced by section 2 of the Courts Amendment . Act, No.2 of 1972. This section enacts that "Subsection (l) of section 40 of the Principal Act is hereby repealed and replaced by the following new subsection -
(1) Subject to the provisions of this Part, the Rules of Court Committee established by section 22 may make rules of Court regulating the practice and procedure of the Court in the exercise of its jurisdiction ,and, in con-nection with a peals brought to the Court, the practice and procedure of any Court from which appeals are brought.
Section 56(1) provides that "subject to the provisions of this section, an appeal shall be to the Court of appeal
(b) by leave of the Judge making the order or of the Court of Appeal from any interlocutory judgment, order or other decision, given or made in the exercise of any such jurisdiction as aforesaid Provided that no appeal shall lie, except by leave of the Court or Judge making the order or of the Court of Appeal.
(i) from an order made ex parte, or
(ii) from an order as to costs only, or
(iii) from an order made by the consent of the parties.
It is not necessary to set out the composition of the Rules of Court Committee esteblished by section 22 of the Courts commandment act no. 2 of 1972. Surface it to say that the Committee was empowered by section 2 of Act No.2 of 1972 to make rules affecting the practice and procedure of the High Court, Court of Appeal and the Supreme Court.
I now come to the submissions made by Mr. Johnson and Mr. Garber set out earlier in this judgment. The important question is 'Did the Judge have jurisdiction to grant leave to a peal? According to section 56 of the Courts Act, the Judge clearly had jurisdiction to grant leave to appeal. Admittedly the procedure adopted to seek leave to appeal was irregular, but in my opinion that did not affect the jurisdiction conferred on the Judge by section 56 of the Courts Act. The next question is "was the order obtained on the application by summons a nullity ? In my judgement, the order would only be a nullity if the Judge had no jurisdiction to make it.
It was submitted by the appellant that the expression "by leave of the Judge making the order" in section 56(1) (b) remains that the application must be made by summons. He further submitted that rule 10(1) of the Court of Appeal that is silent as to the procedure to be adopted when an application for "leave of the judge" is required, and that therefore rule 10(1) is in applicable. It was conceded by both Counsel that the Court of Appeal Rules were made in pursuance of the Courts, Act (as awarded by Act No.2 of 1972), and one of the objects of the rules was to regulate the practice and procedure to be followed by the Court in the exercise of its jurisdiction. Action 56 is what confers jurisdiction and rule 10(1) is the provision lying down the practice and procedure in all cases were leave is required inner section 56 of the Courts
Act, and that is, by notice of motion. The expression leave by the Judge making the order "sim ly means that the application in to be heard by the Judge who made the order.
Having regard to section 1 and 2 of the Courts (Amendment) Act, 1972, and rule 10(l) I am at a loss to appreciate how the Court, of Appeal arrived at the decision that "have by the Judge making the order" can be either by summons or motion depending on the particular case. In every case, application for leave to a appeal must be made by notice of motion. So quite clearly, the application on which the order of 5th May ,1876 was obtained was irregular.
What is required to be determined is whether the order of 5th May, 1976 was a nullity or a mere irregularity. The solution of this issue dependent upon whether the order was void or voidable. The question now arises whether the Judge had the jurisdiction to make the order. I have stated out earlier that the procedure adopted by the appellant to seek leave to appeal was irregular, but the i regularity did not effect the jurisdiction conterred on the Judge by section56 of the Courts Act.
Lord Denning delivering the judgment, in the case of Macfoy v. U.A.C. Ltd. (1962) A.C. 152 at 159 dealt with non compliance of the Rules of Court. In this purticular one he was dealing with order 50 Rule to 4 of the Rules of the High Court of Sierra Leone. His Lordship said: This rule would appear at first sight to give the Court a complete discretion in the matter. But it has been held that it only applied to proceed-ings which are voidable, and not to proceedings which are a nullity: for these are automatically void and a person affected by them can apply to have them set aside ex debito justitiae in the inherent jurisdiction of the Court without going, under the rule: See Anlaby v. Practorius (l888) 200 B.D). 746; 4 T.L.R. 439 C.A.
The defendant here sought to say, therefore, that the delivery of the statement of claim in the long vacation was the nullit and not a mere irregularity. This is the same as saying that it was void and not merely voidable. The distination between the two has been repeatedly drawn. of an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for" an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court to declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity. But if an act in only voidable, then it is not automatically void. It is only an irregularity which may be waived.
It is not to be avoided rules something is done to avoid it. There must be an order of the Court setting it aside: land the Court has a discretion whether to set it aside or not. It would do so if justice demands it but not otherwise, Meanwhile it remains good and a support for all that has been done under it. So will this statement of claim be a support or the judgment, if it was only voidable and not void.
No Court has ever attempted to lay down a decisive test for distinguishing between the two: but one test which is often useful is to suppose that the other side waived the flaw in the proce dings or look some fresh step after knowledge of at., could he afterwords, in justice, complain of the flaw ? suppose, for instance, in this case that the defendant well knowing that the statement of claim had been delivered in the long vacation, had deliverd a defence to it? could he afterwords have applied to dismiss the action for want of prosecution?
asserting that no statement of claim had been deliverdd? clearly not. That shows that the delivering of the statement of claim in long vacation is only voidable. ; It is not void. It is only an irregularity and not a nullity. It is good until avoided. In this case, the statement of claim not being avoided, it took effect at the end of the long vacation and the; time for defence then began to run. Likewise when the plaintiff signed judgment in default of defence, that too was voidable but not void. It was not a nullity. It was therefore a matterfor the discretion of the Court whether it should be set aside or not"
On the basis of the principles which I h?>ve just stated, I am of the view that the application made by summons instead of by a notice of motion rendered the order of 5th May 1976 voidable. The order was a mere irregularity, and cannot in my opinion be said to bo a nullity. Therefore the 6rder was subsisting when it came before the Court of Appeal on 25th March, l977 end the/of Appeal was bound to take cognisance of it.
As set out earlier, the respondent sought to challenge the validity of the order by way of preliminary objection. But I am of the view that since it is a subsist ing order, the only way it could have been challenged is by way of cross-appeal. If an appeal incompelent, the respondent should cross-appeal, and not wait till the hearing, to object to its completency.
In this judgment , the Court of Appeal was clearly wrong in entertaining the preliminary objection and in refusing to assume jurisdiction to hear the appeal, The appeal is still pending and the appellant is enititled to have his appeal heard and determined by the Court of Appeal. '
For these reasons,I would allow the appeal and order that the appeal be remitted to the Court of Appeal for hearing.
asseertingting that no statement of claim had been deliverdd? clearly not. That shows that the delivering of the statement of claim in long vacation is only voidable. It is not void. It is only an irregularity and not a nullity. It is good until avoided. In this case, the statement of claim not being avoided, it took effect at the end of the long vacation and the time for defence then began to run, Likewise when the plain-tiff signed judgment. in default of defence, that too was voidable but not void. It was not a nullity. It was therefore a matterfor the discretion of the Court whether it should be set -aside or not"
On the basis of the principles which I have just stated, I am of the view that the appllication made by summons instead of by a notice of motion rendered the order of 5th May 1976 veidable. The order was a mere irregularity , and cannot in my opinion be said to be a nullity. Therefore the order was subsisting when it came before the Court of Appeal on 25th March , 1977 and the/of Appeal was bound to take cognisance of it.
As set out earlier , the respondent sought to challenge. the ability of the order by was of preliminary objection. But I AM am of the view that since sine it is a subsisting order, the only way it could have been challenge is by way of crosa-appeal .If an a appeal is incompetent, the respondent , the respondent should crossed-appeal , and and not wait till, the hearing, to object to its c correspondency.
In that judgement ,the Court of Appeal was clearly wrong in entertaining the irregularity objection and refusing to assure juridication to him the appeal .The appeal is still xxxxxxxx and the appellant is entitle to have hi appeal heard and determine by the Court of Appeal For these rems us, I would allow the appeal and order that the appeal he remitted to the Court Of Appeal for hearing