Practice-Appeal-Date of Filing
of Motion-Date of Application
Judicature Ac,
1873, section 25
(6)-Assignment of Right of
Action-No Notice to
Debtor-Negligence-Common
Carrier Act of God-On-us of
Proof.
A motor car belonging to one
Huchard was lost in the River
Gambia owing to the capsizing of
a float on which it was being
ferried across. Huchard sued the
defendant, the proprietor of the
ferry, for negligence.
After action brought Huchard
assigned his right of action to
the plaintiffs. but gave no
notice of the assignment to the
defendant,
The Court below dealt with the
case on the aS3umption that the
defendant was a common carrier,
and gave judgment in his favour
on the ground that the loss of
the car was due to an Act of
God. The plaintiffs appealed,
On a preliminary objection, the
Court of Appeal held that the
date on which motion for
conditional leave to appeal is
filed is to be taken as the date
of application for leave to
appeal, even though the motion
states the application will he
heard on a later date.
The judgment of the Court below
was upheld on toe grounds--
(1) That there was no proof that
the defendant was a common
carrier and that the onus of
proving this was on the
plaintiffs.
(2) That, even if it was assumed
that defendant was a common
carrier, there was evidence to
show that the loss was due to an
" Act of God." (3) That
negligence was not proved.
(4) That the plaintiffs had no
cause of action as the right has
been assigned
after action brought and no
notice bad been given to the
defendant.
S. A. Benka-Coker
for the Plaintiffs-Appellants.
C. E. Wright for the
Defendant-Respondent. The
following judgments were
delivered:-
GARDINER-SMITH, J.
At the outset learned Counsel
for the respondent took a
preliminary objection. He drew
our attention to Rule 10 of the
Rules of Court made under the
authority of section 12 of the
West African Court of Appeal
Order-in-Council, 1928, which
reads as follows :-
" After three months from. the
date of a final judgment or
decision application for leave
to appeal shall not be
entertained by the Court below."
He pointed out that the date of
the judgment was the 25th of
June, 1930; that the Notice of
Motion for Conditional Leave to
Appeal was dated the 20th of
September, 1930; that this
notice stated that the Court
would be moved on the 1st of
November, 1930; and that the
Court was actually moved on 1st
November and Conditional Leave
granted on that date. He
submitted that the application
made to the Court below for
Conditional Leave was out of
time, as, although notice of
motion was filed within three
months from the date of the
judgment, the date on which the
notice stated the Court would be
moved and the date on which the
Court actually was moved, were
more than three months after the
date of the judgment. In support
of his contention he cited the
case of Genet v. Schumacher,
Full Court, Sierra Leone, Sierra
Leone Law Reports page 113,
in which it was held that the
filing of notice of motion for
leave to appeal was not an
application for leave to appeal.
Learned Counsel for the
appellants pointed out that
respondents were represented by
Counsel on 12th January, 1931,
when (after an extension of the
time for complying with the
conditions of appeal) final
leave to appeal was granted
without protest, and submitted
that the present objection had
been waived. He also referred to
Cap. 5, section 12 (1) of the
Gambia Laws and pointed out that
the notice of appeal was filed
during vacation, and that 1st
November was the first day after
vacation.
We informed Counsel for the
respondents that his objection
was not sustained and that we
would give our reasons later.
In Genet v. Schumacher,
McDonnell, Acting .J. said,
" In sections 7, 8, 9 of the
schedule (i.e. to the Supreme
Court Ordinance) the words'
application for leave to appeal'
are employed, and the proviso to
9 states that if no sitting of
the Full Court occurs within six
months of the decision, and a
notice to move that Court is
given within six months, that
motion may be dealt with at the
next sitting of the Court."
The effect of a proviso,
according to the ordinary rules
of construction is to qualify
something enacted in the
preceding part of the enactment,
and it is only on the assumption
that "application for leave"
means something quite different
from " notice to move" that this
proviso can be given any meaning
at all
If the two things mean the same
thing, there is no point in
making special provision for
times when the Full Court is not
sitting, for notice to move it
can be filed at any time, and
the proviso 'is then mere
surplusage, an interpretation in
conflict with the settled canon
of construction enunciated in
Queen v. Bishop of Oxford
(1879) 4 Q.B.D. at page
2Gl, per Cockburn, c.]., " that
a Statute ought to be so
construed that if it can be
prevented, no clause, sentence
or word shall be superfluous,
void or insignificant."
In Gladstone Bob Manuel
0- Ors. v. (Jualwr Bob Manuel
0- Ors. 3 Nigeria
L.R. page 96, the Full Court
of Nigeria, on a set of appeal
rules similar in wording and
identical in effect to those of
Sierra Leone, and containing the
same proviso, came to an
opposite conclusion, and held
that the Divisional Court may
entertain an application for
leave to appeal after the lapse
of time prescribed by the Rules
of the Supreme Court provided
that notice of intention to move
the Court for such leave has
been filed within the prescribed
period; in such case the date of
the filing of the motion paper
is
to be regarded as the date of
application. This decision was
based upon the invariable
practice of the Supreme Court of
Nigeria. and upon the view that
as the first step in making the
application is the filing of the
motion paper, the date of the
filing of the motion was to be
accepted as the date of the
application. It does not appear
that the Nigerian Full Court
considered the effect of the
proviso to the rules.
The Sierra Leone decision is
based entirely upon a
construction of the proviso,
which proviso is omitted in the
West African Court of Appeal
Rules. We have to construe,
therefore, what is the meaning
of the words" application for
leave to appeal shall not be
entertained" without any
comparison between an
"application for leave" and a "
notice to move" which formed the
basis of the Sierra Leone
decision.
In my opinion these words
per se
are capable of a wide as well as
a narrow interpretation, and I
think it is our duty to construe
them liberally and in favour of
appeals.
See
Maxwell on Interpretation of
Statutes, 5th edition, chapter
II section 11 (beneficial
construction) and chapter VIII
(presumption against intending
what is inconvenient) and cases
there cited.
It is argued that this will open
the door to abuse, as appellants
will be able to protract their
cases by giving notice for a
date far ahead. I do not
consider that there is any
strength in this objection, and
I agree with this passage in the
judgment of the Full Court of
Nigeria in the case already
cited :-
"When .... the Court is not
moved within the prescribed
period the Registrar must
include the motion in the motion
list of the first day on which
the Court sits to hear motions."
If the applicant fails to appear
either in person or by Counsel
to move the Court on the day on
which the motion is in the
motion list the Court should
strike out the motion unless
there appear to be sufficient
reason for allowing an
adjournment.
"When .... an applicant or his
Counsel inserts in the notice
paper a date later than the date
on which the Court will first
sit to hear motions the
Registrar should disregard such
indication that the applicant
desires to move the Court on the
date inserted, and, if possible,
should notify the applicant or
his Counsel of the date on which
the motion will be in the motion
list."
My attention was drawn to Rule
30 of the West African Court of
Appeal Rules, which provides
that the former practice and
procedure of each Colony shall
apply in matters unprovided for
in the Rules. I do not, however,
consider it necessary to deal
with the matter under this rule,
and I consider it undesirable to
do so.
With regard to the question of
waiver-There is no power to
extend the periods prescribed in
rules 9-11 of the West African
Appeal Court Rules, and this is
in accordance with the practice
of the Privy Council. If,
however, a respondent has a good
objection which he can take in
the Court below, he ought to
take it there and not permit the
appellant to incur the expense
of proceeding with the appeal.
If he does not do this he may be
deprived the costs ..
As
regards the appeal itself, I
have had an opportunity of
reading the judgment of my
brother Turbett with which I
concur.
In my opinion this action was
not maintainable. In the case of
an assignment of a right of,
action it is clear that expres3
notice in writing of the
assignment must be given to the
debtor and that right of action
is transferred only as from the
date of notice;
see
Judicature Act, 1873, section 25
(6). In the present case the
deed of assignment was not
executed until after the
commencement of the action, and
there is no evidence that notice
was given.
Assuming, however, that the
assignment was good, I consider
that the appellants, not having
alleged that the respondent is a
common carrier, cannot recover
damages on that basis. Under
Order 23, rule 3 of the Rules of
the Supreme Court of the Colony
of the Gambia every pleading
must state all material facts on
which the party pleading relies.
It is nowhere alleged in the
writ of summons' or in the
statement of claim that the
respondent is a common carrier,
and no evidence was led on this
point. The respondent's
liability, therefore, was only
that of an ordinary bailee, i.e.
he was bound to use ordinary
care. The facts found by the
learned Judge support the
conclusion that the respondent
did use ordinary care.
Even if the respondent were held
to be a common carrier, the case
in my opinion falls within the
rule laid down in
Nugent v. Smith.
The stormy water met with in
mid-channel, in my opinion,
amounted to an Act of God, and
the evidence, as far as it goes,
shows that the respondent took
steps to avert the consequences,
by reducing speed and altering
his course. To rebut this, it
was necessary for the appellants
to bring stronger evidence than
they have done, to show that the
loss was in part 'attributable
to defects in the pontoon or in
the stowing of the cars or. in
the navigation.
Finally, even had the appellants
succeeded on all these points,
there was no evidence before the
Court as to the value of the
car.
I agree, therefore, that the
appeal must be dismissed with
costs.
TURBETT, ACTING J.
This is an appeal from the
judgment of Mr. Justice Horne
sitting in the Supreme Court of
the Gambia and dated the 25th of
June, 1930.
The material facts of the case
are very briefly as follows:
On the 26th of April, 1929, a
Frenchman of the name
of
Courtlever drove a Chrysler
Motor Car belonging to a Mons.
J. B. Hucha.rd to the
defendant's ferry at Barra
point, and arranged with the
representatives of the defendant
to have the same
transported across the River
Gambia to Bathurst. This
together with another car (the
make is not recorded) belonging
to Louis Orcel and driven by
Major Macklin, a Travelling
Commissioner of that Colony,
were driven into a float which
is towed by the ferry
cars were secured to the float
and the ferry, with the float in
tow,
proceeded to cross the river to
Bathurst, both drivers being
passengers in the ferry itself.
At the commencement of the
voyage it would appear that the
weather was quite fine, although
wind and tide were both
upstream, but as the ferry
approached the middle of the
river-the waves appear to have
increased in violence and the
wind likewise, and the float
listed definitely over to the
port side. The violence of the
waves and wind, appeared to
increase still further and the
float listed' over still more.
At the request of the driver of
the Chrysler car {Courtlever)-speed
was reduced on the ferry and the
course was altered for Dog
Island, which meant that the
ferry was now running before
both wind and tide.
This however does not appear to
have remedied matters to any
appreciable extent and the float
eventual capsized and turned
upside down. Certain members of
the crew jumped over-board to
see if the cars were still
attached to the underneath,
portion of ,the float, but
discovered no trace of them-the
posts to which they had been
tied on the float in the first
instance having snapped off. The
ferry then resumed her voyage to
Bathurst towing the float upside
down.
The appellants who were the
plaintiffs in the Court below
.instituted an action against
the defendant on the facts
aforesaid, and sued the
defendant for the loss of the
Chrysler Saloon Car on the
ground that the defendant's
servants had been negligent,
claiming in all £34:6 as
damages. The respondent entered
an appearance and submitted,
shortly, that his servants had
not been negligent and that the
loss of the car was attributable
to the rough seas encountered in
mid-channel.
The action, which was with
pleadings to which it will be
necessary to refer later, was
heard on the 16th and 25th of
June, 1930, and judgment was
delivered on the latter date for
the defendant (now respondent)
with costs.
The reasons for the judgment
were recorded in writing at a
slightly later period at the
request of plaintiff's Counsel,
and are now included in the
record.
From this judgment the
plaintiffs have appealed on the
following grounds :
1.
The Judge was wrong in holding:-
(a)
that the defendant or his
servants did not negligently
load the float;
(b)
that the defendant or his
servants did not negligently
navigate the float;
(c)
that the loss of the plaintiffs'
car was due entirely to an act
of God.;
(d)
that plaintiffs' agent
interfered with the navigation
of the float by defendant's
servant.
2. The defendant did not
discharge the onus of proof laid
upon him by law.
3. The verdict is against the
weight 6f evidence.
Counsel for the appellants in
opening the appeal on these
first two grounds of appeal
submitted that the defendant was
a common carrier, and as such
was liable as an insurer, Acts
of God and the King's enemies
excepted, and that the onus was
therefore laid on the defendant
in law to prove to the
satisfaction of the Court that
he had done his utmost to
protect the goods entrusted to
his charge. On the assumption
that the defendant was a common
carrier the whole of the
appellants' case has therefore
been built up, and in view of
the subsequent contention of
Counsel for the respondent on
this particular point, I think
it is as well to deal first with
this matter.
It is a curious fact that the
first mention of the expression
common carrier occurs in the
judgment of the learned trial
judge, who stated therein that
the plaintiffs alleged" that the
defendant undertook to carry for
hire a Chrysler motor car and as
a common carrier he was liable
for its loss." Now I cannot
discover within the four corners
of the record of this appeal
anything from which such an
allegation can even be inferred,
and incidentally no proof of the
value of the car appears to have
been given. The plaintiffs have
not averred in the pleadings
that the defendant was a common
carrier or that he even
contracted as a common carrier.
Nor is there any evidence
whatever that the defendant was
in fact a common carrier. A
ferryman may be a common
carrier, but it is a question of
fact whether he contracts merely
to provide a
(1) means of crossing the water
or whether he (2)
contracts to ferry and land
goods.
Only in the latter event does he
become a common carrier:
(See
Halsbury Vol. 4 p. 3;
Walker v. Jackson (1842) 10 M. G
JV. 16l.
In this case there was no
evidence that the defendant
contracted to land this Chrysler
Motor Car. The car was driven on
board the float by Mons.
Courtlever and presumably the
car could have been driven off
in a similar manner on arrival
on the other side.
Again it seems to me, although
the defendant was a ferryman,
that the onus lay on the
appellants to show that the
defendant was in fact a common
carrier-that he was prepared to
accept all goods which were
offered to him for carriage.
That is to my mind the real
test, and there was no evidence
of any kind offered at any stage
of the proceedings which threw
any light on the real nature of
the defendant's business as a
ferryman. In the absence of any
admission on the pleadings or
evidence to the contrary it
cannot be assumed that the
defendant was a common carrier.
The onus was not cast upon the
defendant to disprove that he
was a common carrier. The
defendant was charged on the
pleadings with negligence as a
bailee. There was no evidence of
any special contract. The
defendant never became an
insurer.
In
view of the loss of this car in
the manner previously related,
the onus of proof was only laid
on the defendant to this extent,
to show that the loss did not
happen in consequence of the
neglect of himself to use such
care and diligence as Ct prudent
and careful man would exercise
in relation to his own property:
(See
Halsbury Vo. 1 pages 544-545.)
The Court below, however, dealt
with this case on the assumption
that the defendant was a common
carrier, and it may be as well
to examine the evidence in the
case from this point of view.
The appellants contended
therefore that the carrier was
bound to do his utmost to
protect goods entrusted to his
charge, and that he must show
affirmatively that he has done
all that he could possibly do
despite the immediate Act of
God. That it is not enough to
show that the loss arose from
natural, as distinguished from
human causes, and to leave it to
the other side to show that
there was some want of
precaution or care on his part.
He must himself show
affirmatively that the causes
were such that no reasonable
amount of precaution and care
would have enabled him to avoid
or guard against them:
(See
Carver's Carriage by sea 6th
edition page 11).
Counsel further cited passages
in support of his contention
from the judgment of L.]. James
in
Nugent v. Smith
1
C.P.D.
423.
I shall refer later to the law
expounded in this case.
Appellant's Counsel referred in
detail to the evidence given by
the respondent's servants, and
submitted that even if the Act
of God was the immediate cause
of disaster, yet these servants
did nothing to avert the danger
that was threatening the float
when it was perceived that the
float had a considerable list.
The appellants maintained that
the float had a slight list at
the start, and the the cause of
the float listing still further
was due to the faulty packing of
the Chrysler car before the
adventure commenced, and that
during the course of the voyage
this car broke away from its
fastenings and slipped down
beside the rail on the port side
of the float with the eventual
result that owing to the uneven
distribution of the weight and
the force of the wind and waves
beating against the side of this
craft, the float capsized and
turned upside down. They
maintain that the ferry was
driven at too high a speed in
view of the shallow draught of
the float; that the defendants'
servants did not make any effort
to rescue the Chrysler car when
it was slipping from its
moorings. It is unnecessary to
refer in detail to the various
utterances of the witnesses
which were cited in support of
these contentions.
Counsel for the respondent, on
the other hand, urges that even
if there was a slight list on
the float at the commencement of
the voyage, such a list was not
in itself dangerous, in view of
the manner in which this craft
had been constructed. That the
evidence shows that the heavy
listing of the float was
entirely due to the unexpectedly
heavy weather that was
encountered as the ferry
proceeded towards mid-stream.
That there is no evidence to
support the theory that the
Chrysler car was not fastened up
carefully. That there was no
evidence of negligence or that
the float was not properly
navigated. It is pointed out
that the ferry driver reduced
his speed and altered the course
of his vessel in order to run
before both wind and tide, and
that it is impossible for the
Court to assume that the driver
did not act in a reasonable
manner in all the circumstances.
Respondent maintains that all
the witnesses, including the
appellant's witnesses, confirm
that the weather became rapidly
worse after being fine at the
commencement of the voyage; that
it appears that the car slipped
suddenly over to the port side;
that there is no evidence to
show that respondent's servants
were given an opportunity of
averting the danger that
threatened the float, and that
all the evidence further shows
that some unusual occurrence did
take place which suddenly
overwhelmed the float.
No expert evidence of any kind
was adduced on either side in
regard to the seaworthiness of
this craft. The learned trial
Judge, however, viewed the float
in the presence of Counsel and
satisfied himself on this point
and describes in detail the
construction of this craft in
his judgment. Lord Chief Justice
Cockburn in
Nugent v. Smith
at page 437 states his opinion
of the amount of care which
should be shown by the carrier
as follows:-
II All that can be required of
the carrier is that he shall do
all that is reasonably and
practically possible to insure
the safety of the goods. If he
uses all the known means to
which prudent and experienced
carriers ordinarily have
recourse, he does all that can
be reasonably required of him;
and if, under such
circumstances, he is overpowered
by storm or other natural
agency, he is within the rule
which gives immunity from the
effects of such
vis
major as the Act of God. I do
not think that because some one
may have discovered some more
efficient method of securing the
goods which has not become
generally known, or because it
cannot be proved that if the
skill and ingenuity of engineers
or others were directed to the
subject something more efficient
might not be produced, that the
carrier can be made liable. I
find no authority
saying
that the vis major must be such
as • no human ability could have
prevented,' and I think this
construction of the rule
erroneous."
This construction of the rule as
ennunciated here by the learned
Chief Justice has not been
judicially questioned since the
decision The learned Judge in
the Court below applied this ~uva~
and to the facts of this
particular case and found as· aq~
Louis Orcel
