Court name
Court of Appeal
Case number
CIV APP 20 of 1969

Luseni v Fofana (CIV APP 20 of 1969) [1970] SLCA 4 (30 April 1970);

Law report citations
1970-1971 ALR SL 63
Media neutral citation
[1970] SLCA 4
Case summary:

Civil Procedure-appeals-observance of procedure-duty of appellant to begin: In a court of appeal it is the duty of the appellant to begin and show his reasons for arguing that the judgment of the court below 

Coram
Dove Edwin, JA
Marcus-Jonas, J

LUSENI v. FOFANA

Court of Appeal (Dove-Edwin, Ag. P., Marcus-Jones and Tambiah,

JJ. A.): April 30th, 1970                                            20

(Civil App. No. 20/69)

  1. Civil Procedure—appeals—observance of procedure—duty of appellant to begin: In a court of appeal it is the duty of the appellant to begin and show his reasons for arguing that the judgment of the court below

is wrong; until it is set aside by the court of appeal the judgment of 25 the lower court will remain valid and in force (page 67, lines 29-33).

  1. Civil Procedure—appeals—rehearing—district appeal court may take additional evidence but not hear case de novo—judgment of lower court must be considered: The effect of the Local Courts (Amendment)

Act, 1966 is to confer on the district appeal court wider powers than                                                                                                                                   gp

it had under the 1963 Local Courts Act, in that as well as rehearing the whole case presented by both parties it can also hear additional witnesses; these powers do not, however, amount to a hearing de novo, and the judgment of the court below cannot be ignored (page 65, lines 13-18; page 68, lines 6-27).

  1. Civil Procedure—judgments and orders—effect—judgment of court 35 below remains valid unless set aside by appellate court: See [1] above.
  2. Courts—local courts—district appeal court—Local Courts (Amend­ment) Act, 1966 does not give power to rehear case de' novo— judgment of lower court must be considered: See [2] above.
  3. Statutes—interpretation—statute to be interpreted as a whole, includ- ^0 ing amendments—section not to be read in isolation: It is the duty of

 

authority for this is s.l of the Local Courts (Amendment) Act, 1966 which repealed s.29(9) of the Local Courts Act, 1963. This amend­ment reads: “On any such appeal the District Appeal Court shall rehear the whole case and hear any additional witnesses called by the parties even though they did not give evidence in the Court 5 below.” Mr. Smythe’s submission is that in the amending section the word “shall” is used, whilst in the original s.29(9) of the Local Courts Act the word “may” was used. Mr. Smythe contends that since the word “shall” is used the magistrate must hear the case de novo as this is what the amending section means. What he has failed to 10 show to us is what happens to the proceedings and judgment of the local court from which he has appealed.

If the legislature contemplated a hearing de novo it would have said so and would have made provision for the proceedings and judgment appealed against to be set aside before the hearing de 15 novo. Otherwise you would have the ridiculous situation of two judgments from two courts of competent jurisdiction on the same matter in force at the same time.

The matter before the district appeal court was an appeal and that before the group appeal court was also an appeal and both courts 20 were right in treating the matter as an appeal and nothing more.

In my opinion Mr. Smythe’s contention is untenable. He should begin and justify his appeal before the respondent could be called upon. The procedure he suggests is not known to our laws.

I agree with both the magistrate and the judge. I would 25 dismiss the appeal.

TAMBIAH, J.A.:

This appeal raises an important question of procedure in the district appeal court, constituted by the Local Courts Act, 1963, as 30 amended by the Local Courts (Amendment) Act, 1966.

The plaintiff’s action was dismissed by the native court but on appeal to the group appeal court the decision was reversed. The defendant appealed from this decision to the district appeal court. The learned magistrate who presided in the district appeal court                                                                                                             35

held that the defendant, now the appellant, should commence. From this order the defendant appealed to the Supreme Court. Browne-Marke, J., who heard this appeal, in his order affirmed the order of the district appeal court and said:

“The amendment quoted by Mr. Smythe makes it mandatory 40 for an appeal to the district appeal court to be in the form of a

Sierra Leone—3

 

rehearing but did not state the procedure to be adopted. Under the ordinary rules of procedure it is the duty of the appellant to justify the grounds of appeal either by legal arguments or by adducing further evidence in support of such legal arguments. I cannot see how the position should be different in the case of a rehearing which may be united to the points raised in the appeal and need not cover the whole body of evidence adduced when the case was first heard.”

The defendant has appealed from this order.

Learned counsel for the appellant pointed out the differences in the wording between s.29(9) of the Local Courts Act, 1963 and s.l of the Local Courts (Amendment) Act, 1966, which replaced the repealed s.29(9) of the main Act. Section 29(9) of the Local Courts Act enacted: “On any such appeal the District Appeal Court may rehear the whole or such part of the evidence as justice may require.” Section 1 of the Local Courts (Amendment) Act, which repealed s.29(9) enacts: “On any such appeal the District Appeal Court shall rehear the whole case and hear any additional witnesses called by the parties even though they did not give evidence in the Court below.”

Mr. Smythe, Q.C., who appeared for the appellant, contended that since in the amending act the word “shall” and in the repealed section, the word “may” are used, the court must rehear the whole case and in addition hear any witnesses called by either side. But earlier the courts had the discretion to hear the evidence of any of the witnesses called in the lower court. He urged that once an appeal is filed from the order of the group appeal court, the district appeal court should disregard the judgment and evidence led in the lower court and hear the case de novo, and that since at a trial the rule is that the plaintiff must begin his case when the burden is on him, the defendant was under no obligation to begin in this case and it is the duty of the plaintiff to begin.

It is a cardinal rule of interpretation that in construing an Act it is the duty of a court to read the Act as a whole, including the provisions of any amending Acts, and not read the words of a section in isolation.

Section 33(1) of the Local Courts Act, 1963 sets out the powers of any appeal court constituted under the Local Courts Act. Among them are the powers to:

“(a) confirm the judgment, order or sentence of the Court below;

(b) substitute for the judgment, order or sentence . . . which might lawfully have been made at first instance;

(d) make such order as to costs of the proceedings both in the Appeal Court and in the Courts below as may be 5 just;

(f) make any such supplementary or consequential orders as the justice of the case may require.”

Section 33(2) of the Local Courts Act enacts:                                                                                                             10

“Notwithstanding that the Appeal Court is of the opinion that a point raised on appeal might be decided in favour of the appellant no process or proceedings of a Local Court shall be set aside or declared void by reason of any defect in procedure or want of form or any other reason of a purely technical 15 nature:

Provided that the Appeal Court is satisfied that no sub­stantial miscarriage of justice has occurred.”

These provisions of law clearly show that the district appeal court should recognise the existence of the judgment of the lower court 20 in making the orders referred to in s.31(l) and has the power to dismiss the appeal, if no substantial miscarriage of justice had occurred, although the appellant is entitled to succeed on the technical grounds set out in that section.

Therefore the contention of Mr. Smythe that once an appeal is 25 filed the district appeal court should hear the whole case de novo and ignore the evidence led in the lower courts and the judgment of the group appeal court, fails.

It is a settled principle of law that an appellant should begin in the appellate court and show that the judgment is wrong. And 30 unless the judgment is set aside the appellate court cannot substitute another judgment. The plaintiffs have a judgment in their favour which is valid until it is set aside.

Further, if the contention of Mr. Smythe is correct, it would lead to the curious result that on the filing of a petition of appeal the 35 judgment of the lower court is rendered null and void. If so, there can be no appeal since the judgment becomes void the moment the petition of appeal is filed. Yet the Local Courts Act gives a right of appeal to a hierarchy of courts and the right of appeal is only given if a person is dissatisfied with the judgment.                                                                                                             40

If the contention of Mr. Smythe is accepted it seems to me that

it would be unreasonable for the legislature, which has constituted a hierarchy of appeal courts, to enact that on the filing of an appeal the judgment of the lower court is rendered a nullity. If such unreasonable intention is to be attributed to the legislature there must be clear and unequivocal words to that effect.

The magistrate, when he functions as an appellate tribunal from the decision of the group appeal court, is entitled to the views expressed by the judges of the group appeal court on native law and custom and it cannot be the intention of the legislature to treat the judgment of the group appeal court as a nullity.

Mr. Smythe stressed the necessity for the district appeal court to “rehear the whole case.” He submitted that since the power of the court is to rehear the whole case the plaintiff must begin as if the case is heard for the first time. If such was the intention of the legislature it would have enacted that the only power the district appeal court has is to commence the proceedings de novo.

The amending Act confers the wider functions on the district appeal court of rehearing the whole case presented by both parties and any additional witnesses, whereas under the repealed section, the District Appeal Court had the discretion to hear only the witnesses called in the lower court.

Any appellate court constituted under Part V (Appeals) of the Local Courts Act has no jurisdiction to hear a case de novo without setting aside the judgment of the lower court. An appeal is an extension of the hearing of a case from a lower court to a higher court and an appellate court cannot ignore the proceedings and judgment of the lower court.

For these reasons I answer the precise question posed as to who should begin and hold that the defendant should begin.

I dismiss the appeal with costs.

Appeal dismissed.