Volume 1

(1958) 1 WIR 1

Ramjass v Darbassie And Others

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
12, 13, 14, 15 MAY 1958

Negligence Burden of proof as between defendants Trial judges finding concerning credit of a witness
One defendant does not blame another Whether reasonable and proper for plaintiff to sue other
defendants Costs of successful defendants Damages inadequate as an erroneous estimate.
SD was a passenger in a taxicab which was approaching a parked car and an on-coming car. The taxicab
was travelling at a fast rate of speed, and its driver was dazzled by the head-lights of the on-coming car.
The taxicab collided with the rear of the parked car, and went on to collide head on with the approaching car.
S D received serious injuries.
The driver of the taxicab did not blame the on-coming car, but blamed the parked car for the accident R was
the driver of the taxicab. T was in charge of the parked car and S was the driver of the on-coming car.
Held: (i) the trial judges view that R was an unsatisfactory witness should not be disregarded, and since R
failed to establish that the tail-light on Ts car was not on, and since R was undoubtedly negligent in
travelling too fast, while dazzled by an on-coming car, the conclusion of the trial judge that he alone was
responsible for the accident is correct.
(ii) that in the circumstances of the case it was reasonable and proper for S D to have sued S and T along
with R even though R had not blamed S and that the order, that R pays the costs of the successful
defendants, should not be disturbed.
(iii) the award of general damages is so inadequate as to amount to an entirely erroneous estimate of the
damages.
Appeal dismissed, cross-appeal allowed.
Case referred to
Besterman v British Motor Cab Company Ltd [1914] 3 K B 181
Appeal
Appeal by R from the judgment of the Supreme Court of Trinidad (Trial DivisionCAMACHO J) dated 14
June 1957, whereby the court found in favour of the plaintiff.
SD was a passenger travelling in Rs taxicab which was being driven on the night of 23 March 1952, along a
straight stretch of road in the direction of San Fernando Ss car was approaching Rs taxicab. Both car and
taxicab were travelling fast, the taxicab at some 50 miles per hour. A third car, that of T, was stationary on
the road between the car and the taxicab. It was racing the same direction as Rs taxicab, and parked on its
proper side of the road. R approached the parked car at high speed, and due to the dazzle of the headlights of Ss car, R did not see Ts car until he was within 25 feet of it. R tried to pass Ts car but struck its
right side, lost control of his car and crashed head on into Ss car. S D was seriously injured by the collision.
She sustained a cut on her forehead 4 inches long, fractures of both bones of the right forearm and
contusions on her right knee and back. Osteo-arthritis

1
in the knee was probably aggravated by the accident. She suffered a permanent partial disability which
was assessed at twenty-five per cent.

She sued R T and S for damages. The trial judge found that R was alone responsible for the collision,
dismissed the claims against S and T, and awarded S D an agreed amount of $225 for special damages and
$75 for general damages. He ordered that R pays S Ds costs, including her costs of the successful
defendants S and T R appealed against the finding that he was alone responsible for the accident and
against the order that he pays the costs of the successful defendants. S D filed a cross-appeal against the
award of general damages as being wholly inadequate.
Malcolm Butt QC and Eric Butt (instructed by George Tsoi-a-sue) for the appellant
Frank Misir (instructed by Basil E Jack) for the plaintiff-respondent
H O B Wooding QC and Bruce Procope (instructed by T M Kelshall & Co) for the second defendantrespondent
Sir Courtenay Hannays QC and Raymond Hamel-Smith (instructed by Hamel-Smith & Co) for the third
defendant-respondent
HALLINAN CJ. The plaintiff-respondent in this appeal was a passenger travelling in the taxi of Ramjass,
the first defendant-appellant, which was being driven on the night of 23 March 1952, along a straight stretch
of road in the direction of San Fernando. The car of the second defendant-respondent, Sinanan, was
approaching from an opposite direction. Both cars were travelling fast, that of the appellant at some 50
miles an hour. The car of Toney, the third defendant-respondent, was stationary in the road between the two
other cars; it was facing in the same direction as the appellants car and parked on its proper side of the
road Ramjass, the appellant, approached the parked car at high speed and due to the dazzle of the headlights of Sinanans car, Ramjass did not see Toneys car until he was within 25 feet of it. Ramjass tried to
pass out, but struck the right side of Toneys car, lost control and crashed head on into Sinanans car. Three
persons were killed and most passengers in each car seriously injured, among them the plaintiff-respondent,
who is a woman. She sued Ramjass, Toney and Sinanan for special and general damages for negligent
driving.
The trial judge found that Ramjass was alone responsible for the collision, dismissed the claim against
Sinanan and Toney and awarded an agreed amount of $225 for special damages and $75 for general
damages. He ordered that Ramjass pay the plaintiffs costs including her costs of suit in respect of Sinanan
and Toney; and that Ramjass also pay the costs of the successful defendants, Sinanan and Toney. Ramjass
has appealed against the finding that he was alone responsible and against the order that he pay the costs
of the successful defendants. The plaintiff has filed a cross-appeal against the award of damages as wholly
inadequate.
For Ramjass it was contended that he was not driving too fast having regard to the long stretch of open
straight road, and that Toneys car had no tail-light, which prevented Ramjass from seeing the parked car
until it was too late. Even if he were driving too fast, Toneys negligence was partly responsible for the
accident; and if he was not driving too fast, Toney was wholly to blame. Rampass was undoubtedly dazzled
by the lights of Sinanans car.
It may be said at once that in my view Ramjass was travelling too fast for a person dazzled by the lights
of an approaching car. If he proved that Toneys car had no tail-light, Ramjass could only be partially
exculpated. The burden of proving this fact was on him.
The trial judge found, not only that Ramjass had failed to prove this fact but that on a balance of
probabilities, Toneys tail-light was on. Ramjass and his passenger, Payne, had sworn they saw no tail-light;
Toney and his companion, Ottley, swore the light was on. The judge found their evidence so unsatisfactory

2
that he could not base any conclusion on it. However, he considered that he could rely on three pieces
of evidence and an inference from fact to support a finding that the tail-light was on.
I accept the submission of counsel for the appellants that two of these pieces of evidence are of little
value; firstly, that Dasent, the Licensing Officer, saw Toneys front parking lights on when he arrived on the
scene from Port-of-Spain. This merely established that the front parking lights of Toneys car were working,
nothing else. And secondly, that Sinanan had seen head-lights just before the collisionit is very doubtful if
these were the front parking lights of Toneys car. The judge accepted the fact that Toney had been working
to repair his car and it was probable he spoke the truth when he said the parking lights were on. He
accepted the evidence as to the electrical mechanism being such that the switch that turns on the front
parking lights turns on the tail-light.
I consider that the trial judge was entitled to give some weight to this part of Toneys evidence and to
draw an inference from the evidence to the clectrical mechanism. This inference was based on the
probability that a switch designed to turn a light on did in fact do so; this inference is entitled to some weight
although it is much weakened by the fact that the car was a 1935 model.
However, Ramjass, to succeed in his appeal so as to inculpate Toney, must establish that the tail-light
was not on. Counsel for the appellant concedes that we can only do this upon appeal if we disregarded the
conclusion of the trial judge that Ramjass evidence was unsatisfactory and read it so as to give Ramjass a

re-hearing. Counsel for the appellant submitted that the trial judges view of Ramjass evidence had been
clouded by a wrong conclusion as to Ramjass ability to see if the tail-light was on or not. This is the
passage in the judgment to which he referred:
I am not satisfied that at the speed at which he was travelling and even partially dazzled as he was
he could possibly have seen a red rear light even if there had been one.
The judge in making this statement may well have had in mind Dasents evidence when he said:
The fact that a stationary car ahead had a red rear light would only be seen after you came out of
the dazzle.
The trial judge, as a judge of fact, basing himself no doubt upon experience of his common sense
concerning the limitations of human vision (as he was entitled to do) and upon the evidence of Dasent,
reached a conclusion which I, in the circumstances, using the experience of my common sense, might be
disposed to reject; but I do not think that because of this passage in the judgment we in this court are
entitled to disregard the view of the trial judge (who saw and heard Ramjass give evidence) that he was an
unsatisfactory witness. Even if we were prepared to do this, and to read Ramjass evidence uninfluenced by
the trial judges comment thereon, can we place such reliance on his evidence about the tail-light as to hold
that he had discharged the onus of proof that lay on him? I think not. Even if it were possible he might see
the tail-light, surely his positive evidence that there was no tail-light might well be wrong; for it might well
have been turned on and he, being dazzled, might not see it; and when he, to his consternation, saw
Toneys car 25 feet away he might well be too preoccupied with his own predicament to observe anything.
Moreover, against his evidence is the evidence which the judge accepted and on which some reliance can
be placed, namely, Toneys evidence as to having switched on his front parking lights and the probability that
mechanisms designed to produce an effect did so.
Since Ramjass has failed to establish that Toneys tail-light was not on and since Ramjass was
undoubtedly negligent in travelling too fast while dazzled

3
by an on-coming car, the conclusion of the trial judge that he alone was responsible for this accident is
correct.
In support of Ramjass appeal against the order that he pay the costs of Sinanan, his counsel has
submitted that it was not reasonable in the circumstance to join Sinanan, who obviously was not to blame
and that Ramjass had not in fact blamed Sinanan.
This so-called Bullock order as to costs has been fully discussed in several cases to which we have
referred, including Besterman v British Motor Cab Co Ltd ([1914] 3 K B 181). The test is whether the costs
of the successful defendant have been reasonably and properly incurred as between the plaintiff and the
unsuccessful defendant. The court can consider when deciding what is reasonable, whether one defendant
has blamed the other, but the costs may be reasonably incurred even though one defendant has not blamed
the other, and it is not required of a plaintiff that he should inquire of a defendant if he blames the other.
The words of Vaughan Williams LJ in Bestermans British Motor Cab Co Ltd case ([1914] 3 K B 181.)
([1914] 3 K B at p 186) might well be applied to the present case:
There had been a collision, and it took place under such circumstances that the injured person
would, naturally, not have full information as to whose fault it was, but it took place under such
circumstances that it might have well been the fault of one or other or of both of these people. Those
being the circumstances of the case, it turns out after the trial that there is only one wrong-doer, but
that wrong-doer was sued and successfully sued. Under these circumstances, was it a reasonable
thing for the plaintiff in his action against a man who ultimately turns out to be in fact the wrong-doer to
join the other defendant in order that the matter might be thoroughly threshed out?
All the plaintiff knew in the present case was that Ramjass car had collided with that of Toneys and of
Sinanans; she was knocked unconscious. It was probably the collision with Sinanan which directly caused
her injuries. If she inquired further about the accident she might have known that Sinanans car was
travelling at high speed while subject to the dazzle of Ramjass head-light approaching from an opposite
direction. Ramjass own witness, Payne, stated in examination-in-chief that Sinanans car was coming very
fast. The reasonableness of the plaintiffs action in joining Sinanan is further supported by the fact that
Toney, in his pleadings, alleged that the accident was due to the negligence of Sinanan as well as Ramjass.
Where there are three defendants, as in the present case, and the first successful defendant blames the
second successful defendant, but the unsuccessful defendant does not blame the second defendant, the

fact that blame is attributed to the second defendant is still a relevant circumstance to be considered when
determining the reasonableness of the plaintiffs action.
Looking at the facts which the plaintiff knew or might, by reasonable effort, have ascertained when the
writ was issued, I consider that the costs, the subject of the Bullock order, were reasonably and properly
incurred.
There remains for consideration the plaintiffs cross-appeal against the amount of $75 awarded as
general damages. I am doubtful whether the learned trial judge did not overlook the certificate of Dr
Robertson dated 10 August 1952, when he awarded these damages. The plaintiff had, as a result of
Ramjass negligence, sustained a cut on the forehead 4 inches long, fractures of both bones in the right
forearm, and contusions on the knee and the back. Osteoarthritis in the knee was probably aggravated by
the accident. The award of general damages is, I consider, so inadequate as to be an entirely erroneous
estimate. This court considers that the award should be for $750.
For these reasons, in my opinion, the appeal by Ramjass, both as to liability

4
and as to costs, fails, and the judgment should be varied by substituting an award of $750 instead of
$75 in respect of general damages.
RENNIE J. I agree, and there is very little I would like to add to what the learned President has said. But I
would like to express my view on the main criticism of the judgment. A criticism on that portion of the
judgment where the learned trial judge said:
I am not satisfied that at the speed at which he was travelling and even partially dazzled as he was
he could possibly have seen a red rear light even if there had been one.
This court is asked to say that the learned trial judge came to a wrong conclusion in that portion of his
judgment and used that wrong conclusion to reject the evidence of the witness, Ramjass. Is it a wrong
conclusion to say he was not satisfied that at the speed at which he was travelling and even partially dazzled
as he was he could possibly have seen a red rear light even if there had been one? Ramjass estimated his
speed at 40 to 50 miles per houran estimate which the learned trial judge described as somewhat
conservative. At 50 miles per hour he would travel some 73 feet per second. Ramjass said he first saw
Toneys car when it was only 25 feet away from him.
To be able to say positively that there was no rear light on Toneys car, Ramjass must have seen the
rear of the car and appreciated the fact that there was no rear light on it. He would have had about one-third
of a second to do so but at that time his mind must have been over-burdened with considerations of his
personal safety even if he gave no thought to his passengers. In that fraction of a second he also had to
appreciate the danger he was in and decide to take evasive action. Is there any wonder then that the
learned trial judge was not satisfied?
Without seeing the witness and with no means of judging the speed of his mental processes and with
no means of ascertaining the extent to which he would be emotionally affected in such a situation, I am
unable to say that the learned trial judge was wrong in not being satisfied.
ARCHER J. I, also agree and do not desire to add anything.
Appeal dismissed, cross-appeal allowed.

(1958) 1 WIR 5

Bowring v The Commissioner Of Estate And Succession Duties

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
3, 5, 6, 9 JUNE, 18 JULY 1958

Estate duty Barbados Whether competent to dispose of property Law of Massachusetts Effect of
power of trustees to approve of revocation of trust Barbados Estate and Succession Duties Act 1941, ss 3
(a) and 20 (1).
By a deed of trust dated 16 June 1936, as amended on 4 December 1939, Lady Gilbert-Carter reserved to
herself the right to amend or revoke the trust, provided however, that any such amendment or revocation
shall be consented to in writing by the trustees. The trust deed stated that the trust was executed 5 in the

commonwealth of Massachusetts, and shall be governed by the laws thereof. Lady Gilbert-Carter who was
domiciled in Barbados died in the United States of America on 12 November 1953, without having revoked
the trust, and leaving a will dated 15 March 1952, in which the appellant was named as one of the
executors.
Section 20 (1) of the Barbados Estate and Succession Duties Act 1941, provides that the executor of the
deceased shall pay estate duty in respect of all property of which the deceased was competent to dispose at
his death.
The Commissioner of Estate and Succession Duties assessed the executor as an accountable party in
respect of the property comprised in the trust deed. The executor appealed against this assessment to the
Vice-Chancellor who dismissed the appeal.
Held (ARCHER J, dissenting): that according to the laws of Massachusetts under the trust the trustees had
a complete discretion to give or withhold their consent, provided they acted honestly and from a proper
motive, and that such a discretion constitutes a fetter on the power of Lady Gilbert-Carter so as to render her
not competent to dispose of the property contained in the trust.
Appeal allowed.
Editorial Note. This case is on appeal to the Judicial Committee of the Privy Council.
Cases referred to
Re Phillips, Lawrence v Huxtable [1931] 1 Ch 347, Digest Supp
Re Watts, Coffey v Watts [1931] All E R Rep 786, [1931] 2 Ch 302, 100 L J Ch 353, 145 L T 520, Digest
Supp
Re Dilke, Re Dilkes Settlement Trusts, Verey v Dilke [1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229, 37 TLR 13,
CA, 37 Digest 416, 256
Re Joicey, Joicey v Elliott [1915] 2 Ch 115, 84 LJ Ch 613, 113 LT 437, CA, 76 Sol Jo 459, 37 Digest 408,
186
Re Churston Settled Estates, Freemantle v Churston (Baron) [1954] 1 All ER 725, [1954] Ch 334, 98 Sol Jo
178, 3rd Digest Supp
A-G v Charlton (1877), 2 ExD 398, CA, (1876), 1 ExD 204, 45 LJQB 354, 34 LT 503, 24 WR 788, 37 Digest
110, 428
Charlton v A-G (1879), 4 App Cas 427, HL, 37 Digest 110, 428
Re Parsons, Parsons v A-G [1942] 2 All ER 496, [1943] Ch 12, 112 LJ Ch 65, 167 LT 384, 59 TLR 19, 86 Sol
Jo 359, CA, 2nd Digest Supp
Re Fane, Fane v Fane [1913] 1 Ch 404, 82 LJ Ch 225, 108 LT 288, 29 TLR 306, 57 Sol Jo 321, CA, 37
Digest 113, 452
Re Wellington (Duke), Glentanar v Wellington [1947] 2 All ER 854, on appeal [1948] Ch 118, [1949] LJR
612, 64 TLR 54, 92 Sol Jo 11, CA, 2nd Digest Supp.
A-G v Astor [1922] 2 KB 651, on appeal [1923] 2 KB 157, 92 LJKB 515, 129 LT 116, 39 TLR 256, CA, 21
Digest 9, 33
Eland v Baker (1861), 29 Beav 137, 7 Jur NS 956, 9 WR 444, 54 ER 579, 37 Digest 505, 986
Cowley (Earl) v Inland Revenue Comrs [1899] AC 198, 68 LJQB 435, 80 LT 361, 63 J P 436, 47 W R 525,
15 TLR 270, 43 Sol Jo 348, HL, varying SC sub nom Re Cowleys (Earl) Estate [1898] 1 QB 355, CA,
21 Digest 7, 27
Appeal
Appeal by the executor from the judgment of the Court of Chancery of Barbados (Vice-Chancellor) dated 16
October 1956, whereby the appeal from the assessment of the Commissioner of Estate and Succession
Duties was dismissed. The facts appear in the judgment of Rennie J.
Dear (instructed by Cottle Catford & Co) (for the appellants)
Burton Attorney-General (instructed by Queens Solicitor) for the respondent)

6
HALLINAN CJ. Lady Gilbert-Carter settled the property which is the subject-matter of this case by deed of
trust dated 16 June 1936, referred to in this judgment as the Boston Trust. The trustees under deed of trust
were to pay the net income to the donor, Lady Gilbert-Carter. Under clause 4 of the trust, the donor was
entitled to revoke or amend the trust in whole or in part by an instrument in writing delivered to the trustees.

The respondent seeks to charge Lady Carters executor with liability for death duties on the property
settled in the Boston Trust. The respondent does not claim under s 7 (b) of the Barbados Estate and
Succession Duties Act, 1941, which relates to the life interest of a deceased person, for the person
chargeable thereunder is not the executor but the person to whom the benefit accrues. Owing to the
circumstances of this case, the respondent must endeavour to recover death duties from the executor who
under s 20 of the Barbados Act of 1941 is only liable in respect of property of which the deceased was
competent to dispose at her death.
The question which falls for decision in this case is whether the requirement that Lady Gilbert-Carter
should obtain the consent of trustees before revoking or amending the trust constituted such a fetter on her
power to dispose of the property that she was not competent to dispose within the meaning of that phrase
in s 20 and as defined in s 3 (a) of the Barbados Act of 1941.
The Commissioner of Estate and Succession Duties (the respondent) held that Lady Gilbert-Carter was
competent to dispose within the meaning of the section, and that death duties are payable on the property
settled by the deed of trust. Upon appeal to the Court of Chancery in Barbados the Vice-Chancellor upheld
the contention of the respondent and this appeal has been brought against that decision.
Section 3 of the Barbados Act of 1941 is for all purposes material to these proceedings the same as s
22 (2) (a) of the Finance Act, 1894, and the respondent in this case has therefore relied on the official
practice in England under statutes similar to the Barbados Act. The position in England is concisely
summarised in HANSON ON DEATH DUTIES, 10th Edn, paragraph 549:
A property over which the deceased had general power of disposition jointly with some other
person is not within this subsection [s 22 (2) (a) of the Finance Act, 1894], such power not being such
general power as would enable him to dispose of the property as he thinks fit. Whether a general
power exercisable with the consent of some other person is within the subsection seems doubtful.... It
seems difficult to say that, where consent of another person is necessary the deceased was
competent to dispose of the property as he thinks fit; there seems little difference in substance
between a power of this kind and a joint power.
Hanson then mentions the case of Re Phillips Lawrence v Huxtable, ([1931] 1 Ch 347, Digest Supp.)
and the case Re Watts Coffey v Watts ([1931] All E R Rep 786, [1931] 2 Ch 302, 100 L J Ch 353, 145 L T
520, Digest Supp) (to which I shall later refer in this judgment) and he concludes this paragraph of his book
as follows:
The official practice is to claim duty in the Phillips (Phillips, Lawrence v Huxtable [1931] 1 Ch 347,
Digest Supp) type of case but not in the Watts Coffey v Watts ([1931] All E R Rep 786, [1931] 2 Ch
302, 100 L J Ch 353, 145 L T 520, Digest Supp.) type of case. In view of the observation of Roxburgh
J, in Re Churston Settled Estates Freemantle v Churston (Baron) ([1954] 1 All ER 725, [1954] Ch 334,
98 Sol Jo 178, 3rd Digest Supp.) ([1954] 1 Ch at p 334), the question seems an open one.

Maugham J [as he was then], who decided Re Phillips (Phillips, Lawrence v Huxtable [1931] 1 Ch 347,
Digest Supp), stated that the earlier case, Re Dilke (Dilkes Settlement Trusts, Verey v Dilke [1921] 1 Ch 34,
90 LJ Ch 89, 124 LT 229, 37 TLR 13, CA, 37 Digest 416, 256.) supported his view. Under a deed Dilke had
a general power to appoint subject to the consent of his trustees. He, with the trustees consent, appointed
to such persons as he might by will appoint. It was held that the trustees were not required to approve of the
persons who were to benefit under the exercise of the power, and, therefore, the appointment was good.
But I do not think this case is authority for the proposition that,

7
if the trustees had refused to agree to such an arrangement and withheld their consent, then the court would
have compelled them to give it.
In Re Phillips Lawrence v Huxtable ([1931] 1 Ch 347, Digest Supp) Maugham J, went a step further. A
testator with a general power of appointment to be exercised with his trustees consent made an
appointment to his daughter. His creditors sued as in equity they could recover out of the fund so appointed
if the power was general and unfettered. Did the consent of the trustees create such a fetter? Maugham J,
held that it did not, because the trustees could only veto the exercise of the power but were not concerned in
the selection of the objects of the power, so that the power was general. The judgment does not say so, but
the logical implication of this decision is that where a trustee has no duty as to the selection of the objects, in
this respect he has no powers either. This case, perhaps in order to give effect to the equitable rule in
favour of creditors, went beyond Dilkes case (Dilkes Settlement Trusts, Verey v Dilke [1921] 1 Ch 34, 90 LJ
Ch 89, 124 LT 229, 37 TLR 13, CA, 37 Digest 416, 256.). Phillips case (Phillips, Lawrence v Huxtable
[1931] 1 Ch 347, Digest Supp) has been followed in Re Joicey Joicey v Elliott ([1915] 2 Ch 115, 84 LJ Ch

613, 113 LT 437, CA, 76 Sol Jo 459, 37 Digest 408, 186.). These cases are authority for the view that where
a settlement does not indicate that the trustees are to exercise a discretion in the selection of objects, they
have no power to withhold their consent to the objects selected by the donee.
In Re Phillips Lawrence v Huxtable, ([1931] 1 Ch 347, Digest Supp) the main question was whether a
power was general and unfettered so that a testators creditors could benefit. In Re Watts Coffey v Watts
([1931] All E R Rep 786, [1931] 2 Ch 302, 100 L J Ch 353, 145 L T 520, Digest Supp) the question was
whether this power was or was not general since, if it was general, it would not infringe the rule against
perpetuities; whereas if it was, it would. The consent of the mother of the donee of the power was expressly
required not only to revoke the trust of the settlement but to declare new trusts, and Bennett J, distinguishing
Phillips case (Phillips, Lawrence v Huxtable [1931] 1 Ch 347, Digest Supp), held that it was a sufficient fetter
to make the power not general or as he called it special. In Re Churston Settled Estates Freemantle v
Churston (Baron) ([1954] 1 All ER 725, [1954] Ch 334, 98 Sol Jo 178, 3rd Digest Supp.)the application of the
rule against perpetuities to a power of appointment was again in issue and Roxburgh J, followed the
decision in Watts case (Watts, Coffey v Watts [1931] All E R Rep 786, [1931] 2 Ch 302, 100 L J Ch 353, 145
L T 520, Digest Supp).
As indicated in the passage I have cited from Hanson, the observation of Roxburgh J, in the Churston
case (Churston Settled Estates, Freemantle v Churston (Baron) [1954] 1 All ER 725, [1954] Ch 334, 98 Sol
Jo 178, 3rd Digest Supp) has left open to doubt the soundness of the distinction between the powers and
duties of trustees in cases like that of Re Phillips (Phillips Lawrence v Huxtable, ([1931] 1 Ch 347, Digest
Supp), on the one hand, and Re Watts Coffey v Watts ([1931] All E R Rep 786, [1931] 2 Ch 302, 100 L J Ch
353, 145 L T 520, Digest Supp), on the other. I share these doubts. I should be slow to adopt this
distinction when interpreting the expression competent to dispose in a revenue statute. It seems to me
that the position of a trustee whose consent is required for the exercise of a power of appointment
resembles the position of the donee of a power of appointment to be exercised jointly, rather than that of a
special power where the donee can only appoint among a restricted class. In A-G v Charlton ((1877), 2 ExD
398, CA, (1876), 1 ExD 204, 45 LJQB 354, 34 LT 503, 24 WR 788, 37 Digest 110, 428.) a joint power was
held not to be a general power because it required the concurrence of two minds: I consider that the same
may be said of a power requiring the consent of a trustee. Furthermore, where the ordinary settlor creates a
power of appointment subject to a trustees consent without specifying anything more he would surely
expect his trustee to veto the selection of objects of the power if the choice of the donee was foolish. That I
should have thought was one of the functions of a trustee. In my view Re Phillips Lawrence v Huxtable
([1931] 1 Ch 347, Digest Supp) introduces a highly artificial construction in order to turn what should not
have been a general power (because it required the concurrence of two minds) into a general power so as
to save the equitable right of creditors to share in the fund appointed under the power. Phillips case
(Phillips, Lawrence v Huxtable [1931] 1 Ch 347, Digest Supp) did this by deciding that it is not enough for a
settlor to say The trustee must concur before the donee appoints; he must make it clear that the trustee is
to exercise a discretion in the selection of objects by the donee. The law has been further confused by the
decision in Watts case (Re Watts Coffey v Watts ([1931] All E R Rep 786, [1931] 2 Ch 302, 100 L J Ch
353, 145 L T 520, Digest Supp), where a power that is subject to the consent of a trustee having a discretion
to veto the selection of objects is called a special power. The term special power hitherto in English law
has meant a power of appointment to a limited class, not a power subject to the veto of a trustee on the

8
selection of objects. This last kind of power is not a general power but is not a special power either, just
as a power to be exercised jointly is not a general power but is not a special power.
Happily the Boston Trust contains a provision that it is to be governed by the laws of Massachusetts so
that we need not decide whether the English practice of the Commissioners of Estate and Succession
Duties in applying the distinction between the Phillips (Phillips, Lawrence v Huxtable [1931] 1 Ch 347,
Digest Supp) type of case and the Watts ( Watts Coffey v Watts [1931] All E R Rep 786, [1931] 2 Ch 302,
100 L J Ch 353, 145 L T 520, Digest Supp) type of case is correct; but I think that a consideration of the
English authorities serves by contrast to throw into relief the powers, duties and discretion of the trustees in
this case according to the law of Massachusetts.
The learned Vice-Chancellor had before him two treatises by Professor Scott, an eminent authority on
the law of trusts in Massachusetts, and these treatises and the application of the law as stated therein to the
Boston Trust were expounded by three expert witnesses, all qualified lawyers from America, two being
called by the appellant and one by the respondent.
The Vice-Chancellor found that the law of Massachusetts to be applied is as stated in Professor Scotts
Restatement at s 330, paragraph 1, and in his Law Of Trusts, s 330, paragraph 9, and he extracts from the
Restatement, s 330, paragraph 1, a long passage headed Where power to revoke with the consent of the
trustee and which reads as follows:
If the settlor reserves a power to revoke the trust only with the consent of the trustee, he cannot
revoke the trust without such consent. Whether the trustee can properly consent to the revocation of

the trust and whether he is under a duty to consent to its revocation depend upon the extent of the
power conferred upon the trustee by the terms of the trust. To the extent to which discretion is
conferred upon the trustee, the exercise of the power is not subject to the control of the court, except
to prevent an abuse by the trustees of his discretion. (See s 187.)
If there is a standard by which the reasonableness of the trustees judgment can be tested, the
court will control the trustee in the exercise of the power where he acts beyond the bounds of a
reasonable judgment, unless it is otherwise provided by the terms of the trust.
Then follow instances where the settlement either in express words or by implication limits the
discretion of a trustee in giving or withholding his consent. Professor SCOTT then continues:
On the other hand, the trustee may be authorised to consent to the revocation of the trust with no
restriction, either in specific words or otherwise, imposed upon him in the exercise of the power. In
such a case there is no standard by which the reasonableness of the trustees judgment can be tested,
and the court will not control the trustee in the exercise of the power if he acts honestly and does not
act from an improper motive (see s 187 and Comments i-k thereon). The power of the trustee in such
a case to consent to the revocation of the trust is like a power to appoint among several beneficiaries.
The passage from Professor SCOTT concludes by saying that the purpose of the settlor in inserting the
provision as to the trustees consent may be important and instances the case of where a settlor wishes to
give an unrestricted power to the trustee in order to escape liability to taxin such cases this discretion
would not be controlled by the court.
The Vice-Chancellor then applied this statement of the law of Massachusetts to the Boston Trust and
found as follows:
I can find no standard of duty expressed or implied in the trust instrument and I think that in these
circumstances the trustees owed a duty to the

9
settlor to give consent to any revocation or amendment made by her and had no other duty
provided they acted in good faith and from proper motives.
With respect, I think that the learned judge misdirected himself in finding that the trustees owed any
duty to the settlor to give their consent. I can find nothing in the passage he cited from Professor Scott nor
in the evidence of the expert witnesses to support this conclusion. All these witnesses agreed that under the
terms of the Boston Trust the trustees had a complete discretion to give or withhold their consent provided
they acted honestly and from a proper motive. If these witnesses considered that the trustees owed a duty
to the settlor then they must have said that the court would control the trustees by forcing them to comply
with the wishes of the settlor who is also the donee of the power. It was perfectly clear from their evidence
that in their view the courts of Massachusetts would not do so. On a plain reading of the Boston Trust and
applying the learning of Professor Scott thereto I do not see how these witnesses could have said otherwise.
The difference between the law of Massachusetts and the English decisions in Re Phillips Lawrence v
Huxtable ([1931] 1 Ch 347, Digest Supp) and in Re Joicey Joicey v Elliott ([1915] 2 Ch 115, 84 LJ Ch 613,
113 LT 437, CA, 76 Sol Jo 459, 37 Digest 408, 186.) may be put in this way:
The powers and duties of trustees according to the law of Massachusetts are only controlled by the
court if either expressly or by implication the settlement indicates that in given circumstances the trustees
must exercise their discretion within certain limits. If in such circumstances the trustees exceed those limits,
the court will control them. But where the settlement contains a simple provision that the donee of a power
must obtain the consent of a trustee to its exercise, then the court will not control the discretion of the
trustees exercised honestly and from proper motives. The English decisions in Re Phillips Lawrence v
Huxtable ([1931] 1 Ch 347, Digest Supp) and in Re Joicey Joicey v Elliott ([1915] 2 Ch 115, 84 LJ Ch 613,
113 LT 437, CA, 76 Sol Jo 459, 37 Digest 408, 186.), on the other hand declare that when a settlement
contains the simple provision just mentioned which does not either expressly or by implication indicate that
the settlor imposes on the trustee the duty to veto a selection of objects of which they disapproved, then the
court will control the trustees if they attempt to veto such selection. In short, according to the English
decisions, a trustee is assumed to have no duty (and I suppose therefore no power) to veto the selection of
objects unless an intention to impose such duty is expressly or by implication contained in the settlement;
whereas according to the law of Massachusetts a trustee is assumed to have powers of veto (including the
power to veto the selection of objects) unless an intention to limit such power is expressly or by implication
contained in the settlement.
Since in the present case there is no such intention to be gathered from the Boston Trust, the trustees
have, in my view, such a discretion to give or withhold their consent as constitutes a fetter on the power of

the settlor-donee. She was not competent to dispose within the meaning of this phrase in s 3 (a) of the
Barbados Act, and therefore I consider that this appeal should be allowed.
The respondent is only entitled to recover from the appellant the sum of $17,386.99 together with
interest in accordance with s 23 of the Barbados Act of 1941.
RENNIE J. This appeal is from the judgment of the Vice-Chancellor of Barbados in an appeal under the
Barbados Estate and Succession Duties Act, 1941.
The appellant is one of the executors of the estate of the late Lady Gertrude Codman Gilbert-Carter
who at the time of her death was domiciled in Barbados. Included in the estate is property in the United
States of America which may conveniently be referred to as the Boston Trust. This property is valued at
BWI $563,113.32. The Boston Trust was created by Lady Gilbert-Carter by a deed of trust dated 16 June
1936. In paragraph 4 of that deed it is provided:
The donor during her life and her said son after her death shall have the right at any time or times
to amend or revoke the trust in whole or in part

10
by an instrument in writing delivered to the trustees. If the agreement is revoked in its entirety the
revocation shall take place upon the delivery of the instrument in writing to the trustees, but any
amendment or any partial revocation shall take effect only when consented to in writing by the
trustees.
This paragraph was subsequently amended on 4 December 1939, and remains in its amended form:
The donor during her lifetime shall have the right at any time to amend or revoke this trust either in
whole or in part by an instrument in writing provided, however, that any such amendment or revocation
shall be consented to in writing by the trustees.
In paragraph 1 of the trust deed in its original form it is set out:
To pay the net income to the donor not less often than quarterly as long as she shall live, together
with such parts of principal as she may from time to time in writing request.
On 28 December 1939, this paragraph was amended to read:
To pay the net income to the donor from time to time as long as she shall live.
On 13 June 1944, this paragraph was again amended and in the amended form to read:
To pay the net income to the donor from time to time as long as she shall live together with such
parts of principal as the trustees in their uncontrolled discretion shall deem advisable for the comfort
and support of the donor.
In paragraph 8 of the trust deed it is set out inter alia:
This trust is executed in the Commonwealth of Massachusetts and shall be governed by the laws
thereof.
At the hearing before the Vice-Chancellor and before this court it was agreed on both sides that the law
applicable to the interpretation and construction of the trust deed and the rights, powers and duties
conferred and imposed by it is the law of the Commonwealth of Massachusetts.
Relevant sections of the Barbados Estate and Succession Duties Act, 1941, are ss 3 (a) and 20 (1).
They are as follows:
3. For the purposes of this Act
(a) a person shall be deemed competent to dispose of property if he has such an estate or interest
therein or such general power as would, if he were sui juris, enable him to dispose of the property,
including a tenant in tail whether in possession or not; and the expression general power includes
every power or authority enabling the donee or other holder thereof to appoint or dispose of property
as he thinks fit, whether exercisable by instrument inter vivos or by will, or both, but exclusive of any
power exercisable in a fiduciary capacity under a disposition not made by himself or exercisable as
mortgagee.

20. (1) The executor of the deceased shall pay the estate duty in respect of all property of which
the deceased was competent to dispose at his death, on delivering the estate duty affidavit to the
Commissioner, and may pay in like manner the estate duty in respect of any other property passing on
such death not under his control, if the persons accountable for the duty in respect thereof request him
to make such payment; but an executor shall not be liable for any duty in excess of the assets which
he has received as executor, or might but for his own neglect or default have received.

11
As I see it this court is required to decide whether Lady Gilbert-Carter was competent to dispose of the
property comprised in the Boston Trust. The appellant says she was not because the law of Massachusetts
gives the trustees a wide discretion in consenting or not consenting to the revocation of the trust:
alternatively, if the law of Massachusetts is not to be applied in ascertaining the powers and duties of the
trustees then in our law she was not competent to dispose of the property for the reason that the power she
possessed was not a general power.
When dealing with the duty of the trustees under the law of Massachusetts the learned Vice-Chancellor
said this:
I can find no standard of duty expressed or implied in the trust instrument and I think that in these
circumstances the trustees owed a duty to the settlor to give consent to any revocation or amendment
made by her and had no other duty provided they acted in good faith and from proper motives. It
seems to me that Lady Gilbert-Carter retained a power of control over the property in the Boston Trust.
This is my view of the matter according to the law of Massachusetts and according to it Lady GilbertCarter had and retained until her death such a power to revoke or amend as would enable her to
dispose of the property in the Boston Trust as she thought fit.
The appellant is asking this court to say that there is no evidence on which the learned Vice-Chancellor
could have come to that conclusion. In this it seems to me that the appellant is right. The burden of the
evidence of the two expert witnesses (Perkins and Goodale) called by the appellant is that the trustees
would not have been bound to give their consent whenever and in whatever circumstances they were asked
to do so. They were also in agreement with each other that the trustees owed a duty to the beneficiaries
under the trust. Then there is the evidence of the expert witness Kane who was called by the respondent
and who said that if the trustees acted in good faith and from a proper motive in refusing to give their
consent to the revocation the court would not order them to give their consent even in circumstances where
the consent was unreasonably withheld. Apart from the evidence of the expert witnesses there is also
Professor Scotts Restatement Of The Laws which was put in evidence. That restatement contains the
following passage:
On the other hand the trustee may be authorised to consent to the revocation of the trust with no
restriction either in specific words or otherwise, imposed upon him in the exercise of the power. In
such a case there is no standard by which the reasonableness of the trustees judgment can be tested
and the court will not control the trustee in the exercise of the power if he acts honestly and does not
act from an improper motive (see s 187 and comments i-k thereon). The power of the trustees in such
a case to consent to the revocation of the trust is like a power to appoint among several beneficiaries.
The only conclusion one can come to on the totality of that evidence is that the trustees possessed a
wide discretion in relation to their consenting to the revocation of the trust and that the courts of
Massachusetts would not compel them to give their consent unless it could be shown that they acted
dishonestly and from an improper motive. That restraining power of the trustee amounts in my view to a
fetter on Lady Carters right to revoke the trust and is a sufficient fetter to render her not competent to
dispose of the property as she thinks fit.
The foregoing reasons seem to me to be sufficient to dispose of this appeal, but I suppose I should go
further and deal with the other arguments that were adduced in this case.
The other argument put forward by the appellant deals with the question of

12
whether Lady Carter was competent to dispose of the trust property quite apart from the application of
the law of Massachusetts. This argument presupposes an inability in the court to determine the law of
Massachusetts in relation to this matter. That being so the question now turns on the construction to be
given to the words competent to dispose in the Barbados Act.
In Re Parsons Parsons v A-G ([1942] 2 All ER 496, [1943] Ch 12, 112 LJ Ch 65, 167 LT 384, 59 TLR 19,
86 Sol Jo 359, CA, 2nd Digest Supp.) ([1943] Ch at p 15) Lord Green MR, said:

The phrase competent to dispose is not a phrase of art, and taken by itself and quite apart from
the definition clause in the Act it conveys to my mind the ability to dispose including of course the
ability to make a thing your own....
The matter is set beyond doubt by the definition in s 22, sub-s 2 (a) of the Finance Act, 1894. It is
not an exhaustive definition. It leaves the words competent to dispose to bear their ordinary meaning
in the English language and merely adds certain types of competence which the legislature thought
might be considered not to be included in the natural meaning of the words. So far as is applicable to
the present case the definition is: A person shall be deemed competent to dispose of property if he
has any power or authority enabling him to appoint or dispose of property as he thinks fit].
Full weight can be given to this passage from the judgment of Lord GREEN for s 3 (a) of the Barbados
Act is substantially the same as s 22, sub-s 2 (a) of the Finance Act, 1894. And the definition he applied to
the case he had under consideration seems to me an apt one, for the instant case.
The learned author of Hansons Death Duties, 10th Edn, at p 212, writes:
It seems difficult to say that where consent of another person was necessary the deceased was
competent to dispose of the property as he thinks fit; there seems little difference in substance
between a power of this kind and a joint power.
The learned author then deals with the cases of Re Phillips Lawrence v Huxtable ([1931] 1 Ch 347,
Digest Supp)and Re Watts Coffey v Watts ([1931] All E R Rep 786, [1931] 2 Ch 302, 100 L J Ch 353, 145 L
T 520, Digest Supp), and goes on to say:
In view of the observations of Roxburgh J, in Churston Settled Estates (Freemantle v Churston
(Baron) [1954] 1 All ER 725, [1954] Ch 334, 98 Sol Jo 178, 3rd Digest Supp.), the question seems an
open one.
In Phillips case (Phillips, Lawrence v Huxtable [1931] 1 Ch 347, Digest Supp) the headnote reads:
Under a settlement a fund was given to such persons after the death of A as he should with the
consent of the trustees appoint by deed:
Held that the power was a general power and that the power having been exercised, the fund was
equitable assets for the payment of As debts, not-withstanding that the consent of the trustees to the
exercise of the power was necessary.
In that case the court was concerned with the rights of a creditor as against the claim of a volunteer.
The court was also influenced by the decision in Re Dilke (Settlement Trusts, Verey v Dilke [1921] 1 Ch 34,
90 LJ Ch 89, 124 LT 229, 37 TLR 13, CA, 37 Digest 416, 256). Maugham J, said the matter is not
untouched by authority and he referred to Dilkes case (Dilke Re Dilkes Settlement Trusts, Verey v Dilke
[1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229, 37 TLR 13, CA, 37 Digest 416, 256). In Dilkes case (Dilke Re
Dilkes Settlement Trusts, Verey v Dilke [1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229, 37 TLR 13, CA, 37 Digest
416, 256) a person of unsound mind not so found by inquisition was given a power of appointment which
was to be exercised with the consent and concurrence of trustees. He recovered and made a deed with the
consent and concurrence of trustees, whereby he appointed the trust funds to such person or persons and
purposes as he should by will or codicil appoint. He subsequently made an appointment by codicil and it
was held that on the true construction of the power the trustees were not required to approve of the persons
who were to benefit under the exercise of the power or to the extent to which they were to benefit but that
the exercise of the power was merely made conditional upon the consent and concurrence therein of the
trustees, and that the deed was a valid exercise of the power. The deed itself showed that Sir Charles Dilke
at the date of the original deed

13
was not of sound mind and it was argued that the real intention of the provision was that the question
whether Sir Charles was competent to exercise the power of appointment should be considered by the
trustees and that their consent to the execution of the deed testified by their concurrence in the deed should
be obtained before it could be contended that the power had been exercised. The judgment seems to
uphold that argument and in effect says that the requirement of the trustees consent was a safeguard
against the exercise of the power by a person of unsound mind. Once the disability was overcome the need
to have the trustees consent was no longer real. On that basis the judgment would be an authority limited
to the very special circumstances of the case.
Phillips case (Phillips Lawrence v Huxtable [1931] 1 Ch 347, Digest Supp), as I have already pointed
out, is concerned with the claim of a creditor. In such cases it would seem that the court have not kept
rigidly within the limits of general powers. The learned author of Farwell On Powers, 3rd Edn, at p 8, writes:

A power to appoint to whom the donee pleases except A has been held to be a general power so
as to make the appointed fund assets for the payment of debts (Edie v Babington, 3 Ir ChR 568) but
not to be a general power within s 27 of the Wills Act (Re Byron Williams v Mitchell (1891), 3 Ch 474).
It seems to me that better assistance can be had in solving this problem by looking at the cases dealing
with the rule against perpetuities. In Re Fane Fane v Fane ([1913] 1 Ch 404, 82 LJ Ch 225, 108 LT 288, 29
TLR 306, 57 Sol Jo 321, CA, 37 Digest 113, 452.) ([1913] 1 Ch at p 413) Buckley LJ, said:
General powers are exempt from the restrictions of the rule against perpetuities because the
existence of a general power leaves the property in a position which for the present purpose, does not
differ from that in which it would stand if there were an absolute owner. There exists by the existence
of the power a present immediate and unrestricted alienability and there is no necessity to consider in
that case how far a perpetuity may be created any more than it is necessary to consider it in the case
of an absolute owner.
In the case of Re Watts Coffey v Watts ([1931] All E R Rep 786, [1931] 2 Ch 302, 100 L J Ch 353, 145 L
T 520, Digest Supp) a power was given to revoke a settlement with the consent of the donees mother and
to appoint and declare any new or other trust powers and provisions with the consent of the motherheld it
would not be right to hold that the donee of the power was in substance the owner of the property and
consequently free to deal with it in any way she pleases and that the power was a special power.
Dilkes case(Dilke Re Dilkes Settlement Trusts, Verey v Dilke [1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229,
37 TLR 13, CA, 37 Digest 416, 256) and Phillips case (Phillips Lawrence v Huxtable [1931] 1 Ch 347,
Digest Supp) were both considered and distinguished in Watts case (Watts Coffey v Watts [1931] All E R
Rep 786, [1931] 2 Ch 302, 100 L J Ch 353, 145 L T 520, Digest Supp), which bears a much closer
resemblance to the instant case than either Dilkes case (Re Dilke, Re Dilkes Settlement Trusts, Verey v
Dilke [1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229, 37 TLR 13, CA, 37 Digest 416, 256) or Phillips case (Phillips
Lawrence v Huxtable [1931] 1 Ch 347, Digest Supp). In Watts case (Watts Coffey v Watts [1931] All E R
Rep 786, [1931] 2 Ch 302, 100 L J Ch 353, 145 L T 520, Digest Supp) as in the instant case the power was
one to revoke a settlement with the consent of another party.
In Re Churston Settled Estates, Freemantls v Churston (Baron) ([1954] 1 All ER 725, [1954] Ch 334, 98
Sol Jo 178, 3rd Digest Supp.) Roxburgh J, followed the decision in Watts case (Watts Coffey v Watts [1931]
All E R Rep 786, [1931] 2 Ch 302, 100 L J Ch 353, 145 L T 520, Digest Supp). It is true that he severely
criticised some of Bennett Js reasons but he approved of what he regarded to be the fundamental basis of
Bennett Js decision which was that it would not be right to hold that the donee of the power was in
substance the owner of the property and consequently free to deal with it in any way she pleased.
The decision in Watts case (Watts Coffey v Watts [1931] All E R Rep 786, [1931] 2 Ch 302, 100 L J Ch
353, 145 L T 520, Digest Supp)and in Churstons case (Churston Settled Estates, Freemantle v Churston
(Baron) [1954] 1 All ER 725, [1954] Ch 334, 98 Sol Jo 178, 3rd Digest Supp) seem to me to do no more than
apply the dictum of Lord SELBORNE in Charlton v A-G ((1879), 4 App Cas 427, HL, 37 Digest 110, 428.)(4
App Cas at p 446):
If, however, the substance of the first branch of the section is regarded it certainly points to that
kind of absolute power which is practically equivalent to property and which may reasonably be treated
as property for the purpose of taxation. That is the case with a general power exercisable by a single
person in any way which he may think fit. But it is not the case

14
when a power cannot be exercised without the concurrence of two minds, the one donee having
and the other not having an interest to be displaced by its exercise.
The review of the cases I have made shows Dilkes (Re Dilke, Re Dilkes Settlement Trusts, Verey v Dilke
[1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229, 37 TLR 13, CA, 37 Digest 416, 256) and Phillips (Re Phillips
Lawrence v Huxtable [1931] 1 Ch 347, Digest Supp) on the side of the power being a general power, and on
the side of its being a special power are the dictum in Charltons (Charlton v A-G (1879), 4 App Cas 427, HL,
37 Digest 110, 428.) and the decisions in Watts (Re Watts Coffey v Watts [1931] All E R Rep 786, [1931] 2
Ch 302, 100 L J Ch 353, 145 L T 520, Digest Supp) and Churstons (Re Churston Settled Estates,
Freemantle v Churston (Baron) [1954] 1 All ER 725, [1954] Ch 334, 98 Sol Jo 178, 3rd Digest Supp).
Dilkes case (Re Dilke, Re Dilkes Settlement Trusts, Verey v Dilke [1921] 1 Ch 34, 90 LJ Ch 89, 124 LT
229, 37 TLR 13, CA, 37 Digest 416, 256) in my view was decided on very special circumstances and its
authority must necessarily be restricted. Phillips case (Re Phillips Lawrence v Huxtable [1931] 1 Ch 347,
Digest Supp) concerned the claim of a creditor and it would appear that special considerations are given to
such claims. On the other hand, Watts case (Re Watts Coffey v Watts [1931] All E R Rep 786, [1931] 2 Ch
302, 100 L J Ch 353, 145 L T 520, Digest Supp) bears a close resemblance to the instant case and not only

was the decision against the power being a general power but Dilkes case (Re Dilke, Re Dilkes Settlement
Trusts, Verey v Dilke [1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229, 37 TLR 13, CA, 37 Digest 416, 256) and
Phillips case (Re Phillips Lawrence v Huxtable [1931] 1 Ch 347, Digest Supp) were considered and
distinguished. That is sufficient to satisfy me that the power is not a general power but there is the added
authority of Churstons case (Re Churston Settled Estates, Freemantle v Churston (Baron) [1954] 1 All ER
725, [1954] Ch 334, 98 Sol Jo 178, 3rd Digest Supp).
In my view the appeal should be allowed.
ARCHER J. Lady Gilbert-Carter, who was domiciled in Barbados, died in the United States of America on
12 November 1953, leaving a will dated 15 March 1952, of which the appellant was named as one of the
executors. She had in 1936 created a settlement of certain property by a trust deed executed in Boston,
Massachusetts, in the United States of America, under clause 4 of which she reserved to herself the right to
revoke the entire trust without the necessity of obtaining the consent of the trustees to such revocation and
also the right, but only with their consent in writing, to amend the trust or partially revoke it. Clause 1 of the
trust deed specified the purposes of the trust. Under that clause Lady Gilbert-Carter (hereinafter sometimes
referred to as the settlor) became the sole beneficiary during her lifetime and was entitled to the net
income of the trust together with such parts of the principal as she might from time to time in writing request.
The trust deed was amended on 4 December 1939, and the consent of the trustees of total revocation of the
trust was thereby provided for. It was further amended on 28 December 1939, when the settlor waived and
surrendered her right and privilege to request any part of principal and retained only her right to receive the
net income of the trust. On 13 June 1944, the trust deed was again amended and the trustees were given
uncontrolled discretion to pay such parts of the principal to the settlor as they should deem advisable for her
comfort and support. Her right to receive the net income of the trust continued as before and clause 4 of the
trust deed as amended on 4 December 1939, remained in its amended form. The settlor died without
having revoked the trust and the respondent called upon the appellant to pay estate duty on the property
comprised therein (hereinafter called the trust fund) on the footing that the settlor at her death had been
competent to dispose of it.
The appellant takes the stand that the settlor was not competent to dispose of the trust fund at her
death and that his accountability on which his liability is dependent is limited under s 20 (1) of the Estates
and Succession Duties Act 1941, to the property described in his estate duty affidavit exclusive of the trust
fund. On this behalf it has been submitted that in the discharge of their functions under clause 4 of the trust
deed as it stood at the settlors death the trustees, in giving or withholding consent to amendment or
revocation of the trust, were bound to exercise fiduciary discretion and that this fetter on the power of the
settlor to recover the trust fund was sufficient to render her not competent to dispose of it within the meaning
of the Barbados Estate and Succession Duties Act 1941. A great deal of the argument has been concerned
with the measure of control which the courts of Massachusetts would in the settlors lifetime have been able
to exercise over the trustees discharge of their

15
functions under clause 4 of the trust deed and the circumstances in which these courts would compel
them to act, or restrain them from acting, in a certain way. For the respondent it has been contended that
the trustees had a bare power of veto under clause 4, that they had no right to interfere with the settlors
selection of the persons to benefit from the trust fund, and that she was therefore, for the purposes of the
Act, competent to dispose of it.
It has not been disputed that the law applicable to the interpretation and construction of the trust deed
and to the powers of the trustees is the law of Massachusetts if it exists and is ascertainable. There has
further been an area of agreement between the parties, namely, that the legal estate in the trust fund vested
in the trustees on 16 June 1936, the date of the original trust deed; that from 4 December 1939, their
consent was necessary to either amendment or revocation of the trust; that they were under no compulsion
to give that consent; and that in giving or withholding consent they were bound to act honestly and from
proper motives.
Evidence as to the law of Massachusetts on the subject of trusts with particular reference to the nature
and extent of the fiduciary duties imposed on the trustees and to the power and authority reserved to herself
by the settlor was given by three expert witnesses all of whom were familiar with two treatises by Professor
Scott entitled Scotts Law Of Trusts and The Restatement Of The Law Of Trusts, both of which, these
witnesses averred, were held in high regard by the courts of Massachusetts. In addition to extracts from the
works of Professor SCOTT and the expert evidence, the Vice-Chancellor had to consider the numerous
cases and authorities from which the expert witnesses refreshed their memories. He found as a fact that the
relevant law of Massachusetts was as stated in SCOTTS Restatement, s 330, paragraph 1, and in his Law
Of Trusts, s 330, paragraph 9, including those portions on which the appellants expert witnesses made
definite reservations. It is to be observed that he did not unreservedly accept the evidence of the
respondents expert witness. This witness based himself squarely on Professor Scotts works but it may be
that his application of the law stated therein to hypothetical cases put to him did not always reflect a perfect

understanding of it. Both of the expert witnesses for the appellant disputed the passage in Scotts work
which deals with the absence of a standard by which the reasonableness of a trustees judgment can be
tested and the inability of a court to control him in the exercise of his power to consent or to refuse to
consent to the revocation of a trust and one of these witnesses was prepared to go so far as to challenge
the opinion of the Supreme Court of the United States of America if it differed from his own.
In Re Duke of Wellington (Re Wellington (Duke), Glentanar v Wellington [1947] 2 All ER 854, on appeal
[1948] Ch 118, [1949] LJR 612, 64 TLR 54, 92 Sol Jo 11, CA, 2nd Digest Supp.) Wynn-Parry said ([1947] 2
All ER at p 858):
In a case involving the application of foreign law as it would be expounded in the foreign court, the
task of an English judge, who is faced with the duty of finding as a fact what is the relevant foreign law
and who is for that purpose notionally sitting in that court, is frequently a hard one. But it would be
difficult to imagine a harder task than that which faces me, namely, of expounding for the first time
either in this country or in Spain the relevant law of Spain as it would be expounded by the Supreme
Court of Spain which up to the present time has made no pronouncement on the subject, and having
to base that exposition on evidence which satisfies me that on this subject there exists a profound
cleavage of legal opinion in Spain, and two conflicting decisions of courts of inferior jurisdiction.

Wynn-Parry J had the difficult task of deciding whether or not a certain. doctrine was recognised by Spanish
law, there being no express provision in the Spanish civil Code, nor any express decision of the Spanish
Supreme Court, on the point, and the expert witnesses being of opposite views. He resolved

16
the difficulty by himself interpreting an article of the Spanish Civil Code in the light of the expert evidence
and thus arrived at a conclusion.
There has been no evidence in this case that according to the jurisprudence of Massachusetts the law
of Massachusetts until expounded resides in the breast of the judge awaiting exposition. It may be so; it
may be that the law of Massachusetts abhors a vacuum: on the other hand, it may equally well be that a
particular law comes into existence only when it is first expounded by a competent authority. It is common
ground between the parties in the case that the point in dispute between them, namely, how far control of
the trustees by the courts of Massachusetts extended, is not covered by any express decision of those
courts and therefore awaits exposition. For the reason I have given I feel unable to say with any confidence
that the law of Massachusetts on the point can be ascertained but I shall assume for the purposes of this
judgment that it can. On that assumption, there was, in my view, evidence upon which the Vice-Chancellor,
who had to contend with opposing views which were categorically expressed, could have found that it was
as he stated it to be, that is to say, as set out in Scotts works, and I apprehend that I am not concerned to
inquire further. I do not trouble to wonder whether Professor SCOTT would have qualified in any way what
he has written if the appellant had been allowed to supplement the evidence, as he sought to do, by an
affidavit of Professor SCOTT. I would merely observe that presumably the courts of Massachusetts in
drawing upon the learning of Professor SCOTT would ordinarily rely upon his written and not his spoken
word and in that respect be no safer from liability to error than the Vice-Chancellor.
The question then arises as to whether or not the fetter on the settlors power to revoke the trust as
described by Professor SCOTT negatived her competency to dispose of the trust fund.
Counsel for the appellant has submitted that the Vice-Chancellors finding that the trustees are not
required to conform to any standard of duty, express or implied, when exercising their functions under clause
4 of the trust deed results in an increase in the size of the fetter upon the settlors powers of revocation and
amendment and a corresponding diminution in her competency to dispose of the trust fund. He criticised
that part of the judgment in which the Vice-Chancellor said:
I can find no standard of duty express or implied in the trust instrument and I think that in these
circumstances the trustees owed a duty to the settlor to give consent to any revocation or amendment
made by her and had no other duty provided they acted in good faith and from proper motives.
It is by no means clear to me that the Vice-Chancellor was doing more than stating his final conclusion,
namely, that the trustees were not concerned with any change of destination of the trust fund and that for
practical purposes their function under clause 4 consisted in giving consent to amendment or revocation of
the trust deed in the course of which they must have acted in good faith and from proper motives.
Counsel for the respondent relied on the cases in Re Dilke Re Dilkes Settlement Trusts, Verey v Dilke
([1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229, 37 TLR 13, CA, 37 Digest 416, 256.) and in Re Phillips Lawrence
v Huxtable ([1931] 1 Ch 347, Digest Supp), and contended that whatever the fetter upon the power of the
settlor to revoke or amend the trust deed, it did not operate upon the selection of the beneficiaries of the

trust fund and in consequence could not have impaired the settlors competency to dispose of the trust fund.
Counsel for the appellant cited numerous authorities for the purpose of showing their inapplicability to
ascertainment of the settlors powers. In my view, many of those authorities are in point and cannot be
summarily disposed of as counsel for the appellant was wont to do. I propose to deal very briefly with some
of the cases to which he referred and to record my observations on them.
Re Dilke Re Dilkes Settlement Trusts, Verey v Dilke ([1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229, 37 TLR
13, CA, 37 Digest 416, 256.) was a decision on the validity of the exercise of a power;

17
interpretation of the provisions of the law corresponding to the Barbados Estate and Succession Duties
Act 1941, was not involved in the decision but it would be quite inaccurate to say that the decision had
nothing whatever to do with the question of competency to dispose. As Lord Green MR, said in Parsons v
A-G (8) ([1943] 1 Ch at p 15):
The phrase competent to dispose is not a phrase of art, and, taken by itself and quite apart from
the definition clause in the Act, it conveys to my mind the ability to dispose, including, of course, the
ability to make a thing your own.
And further on in his judgment he says that the words are wide and, in a sense, popular in meaning. It is, in
my judgment, therefore, fallacious to attempt to proscribe Re Dilke Re Dilkes Settlement Trusts, Verey v
Dilke ([1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229, 37 TLR 13, CA, 37 Digest 416, 256.) and other cases not
decided under the Finance Acts or to keep cases decided under particular enactments in watertight
compartments for they afford considerable guidance as to the meaning of competency to dispose as
contemplated by the Barbados Estate and Succession Duties Act 1941. Sankey J, in A-G v Astor ([1922] 2
KB 651, on appeal [1923] 2 KB 157, 92 LJKB 515, 129 LT 116, 39 TLR 256, CA, 21 Digest 9, 33.) equated
power to dispose in s 4 of the Revenue Act of 1845 with power to appoint or dispose as he sees fit in s 22
(a) of the Imperial Finance Act of 1894 which is identical with s 3 (a) of the Barbados Estate and Succession
Duties Act 1941, and it will be seen that Roxburgh J, in Re Churston Settled Estates Freemantle v Churston
(Baron) ([1954] 1 All ER 725, [1954] Ch 334, 98 Sol Jo 178, 3rd Digest Supp.) prayed in aid language used
by Lord Selborne in Charlton v A-G ((1879), 4 App Cas 427, HL, 37 Digest 110, 428.), which he interpreted
as being of general application although the case dealt with a joint power of appointment and taxation and
he was considering the rule against perpetuities.
The validity of the exercise of the power in Re Dilke Re Dilkes Settlement Trusts, Verey v Dilke ([1921]
1 Ch 34, 90 LJ Ch 89, 124 LT 229, 37 TLR 13, CA, 37 Digest 416, 256.) depended on the construction to be
placed upon certain words in a settlement deed under which a general power of appointment which was
conferred was to be exercisable with the consent and concurrence of the settlement trustees (not being less
than three) or of a majority of three or four trustees. It was held both in the court of first instance and in the
Court of Appeal that upon the natural meaning of the words creating the power it was impossible to say that
the trustees had to exercise a discretion as to the persons to be benefited by the exercise of the power, that
their consent was merely to the exercise of the power by the donee of the power and that it had been
properly given.
In Re Phillips Lawrence v Huxtable ([1931] 1 Ch 347, Digest Supp) a settlement fund was given to such
persons, after the death of the settlor, as he should, with the consent of the trustees, appoint by deed. The
settlor appointed to certain persons but died owing a large sum of money to his creditors which his free
estate was insufficient to meet. It was held that his power under the settlement was a general power which
he had exercised and that the settlement fund was equitable assets for the payment of his debts although
the consent of the trustees to the exercise of the power was necessary because that consent, while directed
to the exercise of the power, did not involve the trustees in the selection of the objects by the donee of the
power. The testators competence did not depend on the circumstances that the trustees had consented to
the appointment.
These two cases received the attention of Roxburgh J, in Re Churston Settled Estates Freemantle v
Churston (Baron) ([1954] 1 All ER 725, [1954] Ch 334, 98 Sol Jo 178, 3rd Digest Supp.). He criticised
portions of the judgment of Bennett J, in Re Watts Coffey v Watts ([1931] All E R Rep 786, [1931] 2 Ch 302,
100 L J Ch 353, 145 L T 520, Digest Supp), in which Bennett J, distinguished Re Dilke Re Dilkes Settlement
Trusts, Verey v Dilke ([1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229, 37 TLR 13, CA, 37 Digest 416, 256.) and
Re Phillips Lawrence v Huxtable, ([1931] 1 Ch 347, Digest Supp), but he approved of a passage in the
judgment which seemed to him to be the fundamental basis of the decision. That passage reads:
It seems to me that it would not be right to hold that, upon the terms of the powers contained in the
marriage settlement which I have to construe... (the daughter) was in substance the owner of the
property, and consequently free to deal with it in any way she pleased.

Re Watts Coffey v Watts ([1931] All E R Rep 786, [1931] 2 Ch 302, 100 L J Ch 353, 145 L T 520, Digest
Supp) was also a decision on the rule against perpetuities. Under a

18
marriage settlement a wife was empowered to revoke by deed during the life of her mother the trusts
declared by the settlement and to appoint and declare (with the consent of her mother) any new or other
trusts, powers and provisions concerning the premises to which the revocation should extend. Bennett J,
held that the power was a special power and said that regard must be had to the fact of the mothers
consent in writing being given both to the exercise of the power of revocation and to the exercise of the
power of new appointment. Roxburgh J, felt unable to appreciate the relevance of this part of the judgment.
He said ([1954] 1 All ER at p 730):
Again, I cannot appreciate the bearing of that. The two things are different. I, therefore, cannot say
that I can see any real ground of distinction on those facts between Re Watts Coffey v Watts ([1931] All
E R Rep 786, [1931] 2 Ch 302, 100 L J Ch 353, 145 L T 520, Digest Supp) and Re Dilke Re Dilkes
Settlement Trusts, Verey v Dilke ([1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229, 37 TLR 13, CA, 37 Digest
416, 256.) and Re Phillips Lawrence v Huxtable ([1931] 1 Ch 347, Digest Supp). As far as I can make
out neither Re Dilke Re Dilkes Settlement Trusts, Verey v Dilke ([1921] 1 Ch 34, 90 LJ Ch 89, 124 LT
229, 37 TLR 13, CA, 37 Digest 416, 256.) nor Re Phillips Lawrence v Huxtable ([1931] 1 Ch 347,
Digest Supp) really threw any particular light on the question.
He then proceeded to discuss two statements in Key And Elphinstones Precedents In Conveyancing,
namely:
(a) a power to two or more to appoint as they think fit is a general power for the purpose of the rule
(against perpetuities).
(b) a power to X to appoint generally but with the consent of Y will be general or special for the
purpose of the perpetuity rule, according to whether on the true construction Y has merely a bare veto
on an appointment or is under a duty to consider the beneficial interests which X proposes to appoint,
and the interests of those who take in default of appointment; if he has such duty the power is special.
He rejected the former statement and found the distinction which the latter statement drew to be
unsupported by authority. Instead, he deduced from the authorities what he conceived to be the true
underlying principle of the distinction, namely, whether upon the terms of the power the donee of the power
was in substance the owner of the property, and consequently free to deal with it in any way he or she
pleased. He drew comfort from passages in the judgment of James LJ, in A-G v Charlton ((1877), 2 ExD
398, CA, (1876), 1 ExD 204, 45 LJQB 354, 34 LT 503, 24 WR 788, 37 Digest 110, 428.) and of Lord
Selborne when that case reached the House of Lords.
James LJ, had said (2 Ex D at p 412):
A joint power of appointment is, in my opinion, an entirely different thing in intention and practical
operation from a general and absolute power of appointment in one individual. In the latter case it is
really and practically the equivalent of propertywhen exercised the property becomes assets. In the
other case, it is what purports to bea form of remoulding a settlement according to the exigencies of
the family.
Lord Selborne had said (4 App Cas at p 446):
If, however, the substance of the first branch of the section (of the Succession Duty Act 1853) is
regarded, it certainly points to that kind of absolute power which is practically equivalent to property,
and which may reasonably be treated as property, for the purpose of taxation. That is the case with a
general power exercisable by a single person in any way which he may think fit. But it is not the case
when a power cannot be exercised without the concurrence of two minds; the one donee having, and
the other not having, an interest to be displaced by its exercise. Nothing could well be conceived more
unreasonable, in a practical point of view, than to treat a joint power like that now in question in a
family settlement as equivalent in substance to joint property in the two donees.

Roxburgh J was dealing with joint powers of appointment. The question he had to decide was whether
certain limitations affecting the settled estates infringed the rule against perpetuities. Some of his criticisms
of Bennett Js

19

reasoning in Re Dilke Re Dilkes Settlement Trusts, Verey v Dilke ([1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229,
37 TLR 13, CA, 37 Digest 416, 256.) appear to me to be sound, but, with due deference to him, I think that
Re Dilke Re Dilkes Settlement Trusts, Verey v Dilke ([1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229, 37 TLR 13,
CA, 37 Digest 416, 256.) and Re Phillips Lawrence v Huxtable, ([1931] 1 Ch 347, Digest Supp), in particular
the latter case, do shed much light on the problem which he had to consider. There is all the difference in
the world between consent which is necessary merely to the validity of the exercise of a power and consent
to the choice of persons to be objects of the power. That distinction was pointed out in Re Phillips Lawrence
v Huxtable ([1931] 1 Ch 347, Digest Supp), and the fund was held to be equitable assets for division among
creditors because the testator had not been fettered in the selection of the objects of the power he was
exercising although the trustees could not have vetoed the exercise of the power. In Re Dilke Re Dilkes
Settlement Trusts, Verey v Dilke ([1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229, 37 TLR 13, CA, 37 Digest 416,
256.) the exercise of the power was held to be valid because the trustees had nothing to do with the choice
of beneficiaries. I find nothing in the judgments of James LJ, and Lord Selborne in conflict with this
conception, despite the generality of language which Roxburgh J, ascribes to Lord Selborne. Lord
Selbornes concurrence of two minds directed to the selection of objects is far different from the concurrence
of two minds directed to the mere exercise of the power.
In Eland v Baker ((1861), 29 Beav 137, 7 Jur NS 956, 9 WR 444, 54 ER 579, 37 Digest 505, 986.) a
marriage settlement gave to the parents a power, with the consent of the trustees, to make void the trusts,
and of appointing the estate to new uses. This power was exercised for the purpose of mortgaging the
estate to one of the trustees for a sum advanced to the father. The estate was afterwards sold under a
power of sale contained in the mortgage deed. It was held that a good title could not be made under it. Sir
John Romilly MR, said (29 Beav at p 140):
I do not think I can make the purchaser take this title. I do not dispute the proposition that a person
may in a marriage settlement introduce a proviso which shall simply put an end to the deed; for
instance, that with the consent of the parties to the deed that there shall be contained in it a power to
revoke all the trusts and uses of the settlement, exactly as if the settlement had never been executed,
and that such a power may be made perfectly distinct from the deed. But I do not so read the power of
revocation here contained. It is a power to the father, the son-in-law and the daughter, with the
consent in writing of the trustees for the time being, absolutely to revoke and make void all or any of
the uses, etc. If it had stopped at the end of the sentence, then it would simply have given the
property back to the father, but it goes on to say, and by the same or any other deed or deeds to be by
them duly executed and attested, to limit and declare new and other uses, trusts, powers, provisoes
and declarations in lieu of and in substitution for the uses, trusts, powers, provisoes and declarations
which shall have been so revoked and made void, anything hereinbefore contained to the contrary
notwithstanding. I read this as a power of revocation for the purpose of relimiting the estate, and
relimiting the estate to any new trusts and declarations. How must the estate be relimited? To what
trusts and with what declarations? The answer is, to trusts for the benefit of the persons who are the
cestuis que trust of the instrument, according to the true scope and intention of the deed itself. Here is
an agreement upon marriage that certain land of the father of the lady shall be settled to the uses
therein contained, that is to say, to the use of the husband and wife and to the children of the marriage.
My impression is that this must mean a resettlement for the benefit of the persons who are the parties
to the marriage and that the consent of the trustees must be given for that purpose.
This case is instructive for two reasons. It indicates the form of words appropriate to a power of
revocation simpliciter where consent of trustees is required and also a form of words which binds the settlor
to resettle the property: in the former case the settlor can resume the property as if no settlement had even
been made; in the latter case he is not free to do so and the

20
trustees can exercise control over him in his treatment of the cestuis que trust.
Counsel for the appellant placed considerable reliance on A-G v Astor ([1922] 2 KB 651, on appeal
[1923] 2 KB 157, 92 LJKB 515, 129 LT 116, 39 TLR 256, CA, 21 Digest 9, 33.) and on the judgments of the
Court of Appeal in the same case. Despite some obscure language in the judgments the decision can, I
think, be supported on grounds consonant with decisions in Re Phillips Lawrence v Huxtable ([1931] 1 Ch
347, Digest Supp) and Eland v Baker ((1861), 29 Beav 137, 7 Jur NS 956, 9 WR 444, 54 ER 579, 37 Digest
505, 986.). Paragraph 2 of the Information by the Attorney - General which appears in [1922] 2 KB at p 652
refers to clause 8 of the settlement which was the subject of inquiry but does not set it out verbatim.
Counsel for the appellant in this case contended that the consent of the trustees was not necessary to new
appointments under the Astor settlement but only to revocation of the settlement and trust. I do not so read
the paraphrase of clause 8 of the settlement. If it is an accurate paraphrase (and I know of no source from
which the actual wording of the clause can be obtained) the consent in writing of the trustees was necessary
to new appointments. If the consent of the trustees had been necessary only to revocation I would have

expected paragraph 2 of the Attorney - Generals Information to read it should be lawful for him to revoke
with the consent of the trustees the settlement and the trust thereby created and to appoint... such new and
other trusts I consider therefore that the Astor case (A-G v Astor [1922] 2 KB 651, on appeal [1923] 2 KB
157, 92 LJKB 515, 129 LT 116, 39 TLR 256, CA, 21 Digest 9, 33.) is governed by Eland v Baker ((1861), 29
Beav 137, 7 Jur NS 956, 9 WR 444, 54 ER 579, 37 Digest 505, 986.) and is similar to Re Watts Coffey v
Watts ([1931] All E R Rep 786, [1931] 2 Ch 302, 100 L J Ch 353, 145 L T 520, Digest Supp), where although
there was power to revoke with consent there had to be appointment to new uses and both the daughter and
her mother were concerned with the persons to benefit under the settlement.
ROXBURGH J in Re Churston Settled Estates Freemantle v Churston (Baron) ([1954] 1 All ER 725, [1954]
Ch 334, 98 Sol Jo 178, 3rd Digest Supp.), after quoting with approval the passage from Bennett Js
judgments in Re Dilke Re Dilkes Settlement Trusts, Verey v Dilke ([1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229,
37 TLR 13, CA, 37 Digest 416, 256.), to which I have referred, compared the position of a person having a
general power of appointment with an owner and decided that the doctrine that a person having a common
general power is to be treated as though he were for all practical purposes the owner ought not to be applied
to a joint power of appointment, or to a power of appointment to which the consent of somebody is required.
He then continued:
After all, what is the underlying broad principle of the rule against perpetuities? It is that property
should not be tied up beyond a certain period of time. If the property ceases to be tied up, or, in other
words, if it vests in a beneficial owner, then the mischief of the rule is avoided.
In this case it can, with equal propriety, be asked: What is the underlying broad principle of the Finance Act
of 1894 on which the Barbados Estate and Succession Duties Act 1941, is based?
Lord Macnaughten in Cowley (Earl) v Inland Revenue Comrs ([1899] AC 198, 68 LJQB 435, 80 LT 361,
63 J P 436, 47 W R 525, 15 TLR 270, 43 Sol Jo 348, HL, varying SC sub nom Re Cowleys (Earl) Estate
[1898] 1 QB 355, CA, 21 Digest 7, 27.) ((1899), AC 198 at p 210) said:
The principle on which the Finance Act 1894, was founded is that whenever property changes
hands on death the State is entitled to step in and take toll of the property as it passes without regard
to its destination or to the degree of relationship, if any, that may have subsisted between the
deceased and the person or persons succeeding.
The appellant does not, of course, say that no estate duty is payable by anybody on the trust fund, but he is
concerned to pay estate duty at the lowest possible rate, and, in this connection, it is difficult to see why the
respondent did not rest his case on the passing of the trust fund and on the appellants liability to pay at the
higher rate of duty to the extent of the assets in his hands. The case has, however, been argued solely on
the footing of competency to dispose and I say no more about passing of the property.
ROXBURGH J was not, nor was Lord Selborne, dealing with the case of a single donee of a power who can
only validly exercise that power if the trustees consent but who is not subject to dictation or control in the
choice of objects of the power. In my view, his criticism of the second statement which he

21
quoted from Key And Elphinstones Precedents In Conveyancing and which he assumed to have been
based upon Re Dilke Re Dilkes Settlement Trusts, Verey v Dilke ([1921] 1 Ch 34, 90 LJ Ch 89, 124 LT 229,
37 TLR 13, CA, 37 Digest 416, 256.) did not take account of Eland v Baker ((1861), 29 Beav 137, 7 Jur NS
956, 9 WR 444, 54 ER 579, 37 Digest 505, 986.). Lady Gilbert-Carter was the sole owner of the property
which she handed over to trustees in 1936. Only she could initiate revocation of the trust and after
revocation she was not obligated to resettle the property. The trustees had no duty towards beneficiaries
nor could any beneficiary resist revocation. There is no evidence as to the reason for amendment of clause
4 of the trust deed in December 1939, but whatever the reason, she did not, in my opinion, thereby forfeit
her right to retrace her steps. Her competency to dispose of the trust fund is not, in my view, to be
determined by reference to the competency of the trustees to prevent her from disposing of it. Before the
settlement she was competent to dispose of it, by the terms of the settlement she took a step that was not
irrevocable for under it she could with the consent of the trustees regain the property. It seems to me that
the argument that she was not competent to dispose after December 1939, involves the proposition that
nobody was competent thereafter to dispose in her lifetime for the trustees had no power to dispose. It was
not, as it might have been, that it could not be established that the settlor at her death had been competent
to dispose. Alternatively, the argument must be that competent to dispose means competent to transfer in
any way and to whom she pleases without the intervention of anybody. I see no justification for qualifying
the expression in this way. I think that the criterion should be: Was there a way in which she could have

made the property once more her own? not : Was there a way in which the trustee could have frustrated
her attempt to regain her property? If she had obtained the consent of the trustees to a total revocation of
the trust, there being no provision for resettlement the revocation would have been unquestionably valid and
there could not in that event have been any question as to her competency to dispose. There is no warrant
for importing the conception of unreasonable trustees in the matter: there is equally good, if not sounder,
reason for assuming that the trustees would have been reasonable persons and I do not believe that the
determination of the settlors competency can be made to depend on any such hypothesis. The weapon of
veto was undoubtedly a fetter upon the settlors power of revocation but so was it upon the power of
appointment in Re Dilke Re Dilkes Settlement Trusts, Verey v Dilke ([1921] 1 Ch 34, 90 LJ Ch 89, 124 LT
229, 37 TLR 13, CA, 37 Digest 416, 256.) and Re Phillips Lawrence v Huxtable, ([1931] 1 Ch 347, Digest
Supp) and yet repeated references to these cases continue to be made in recent decisions. The distinction
between the authority of a trustee to give or withhold consent to the exercise of a power where his consent
is necessary to the validity of the exercise of the power and his authority where his discretion as to the
selection of objects of the power is called into play seems to me to be well recognised. In my judgment,
Lady Gilbert-Carter was competent to dispose because she could have made the trust fund her own as if no
settlement had ever been made. I am not concerned with what the trustees could, still less might, have
done. I think that in popular language she was for practical purposes the owner because by revoking the
trust she was free to deal with the trust fund in any way she pleased.
I would have dismissed the appeal.
Nothing has been said in the course of the argument about the nature of the property constituting the
trust fund. Although the trust deed was printed with the record the Schedule to it was not. Clause 2 of the
trust deed refers to the trust fund and clause 7 to both real and personal property in the trust fund.
Having regard to the definition of property in s 2 of the Barbados Estate and Succession Duties Act, 1941,
the accountability of the appellant should be restricted to that portion of the trust fund which consists of
personality and his liability assessed accordingly.
Appeal allowed.

22
(1958) 1 WIR 23

Alfred v Persaud
FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
17 JUNE 1958

Intestacy Letters of administration Interest in estate of intestate llegitimacy of intestate Illegitimacy of

claimants British Guiana Illegitimacy Ordinance, 1932 Construction of s 11 (2).
Zuleika White died intestate leaving no descendants. She was the illegitimate child of one CBC B was
herself the illegitimate child of MH, and from MH are descended the claimants for letters of administration.
Section 11 (2) of the British Guiana Illegitimacy Ordinance 1932, provides, that where an illegitimate child
dies intestate, in respect of all or any of his property, his mother, if surviving, shall be entitled to take any
interest therein, to which she would have been entitled, if the child had been the only surviving parent, and if
his mother does not survive him, then such legitimate and illegitimate children of his mother as survive him,
and the persons entitled to succeed them on intestacy shall be entitled to take an interest therein to which
they would have been entitled if such children and the child had been born legitimate.
Held: that the applicant had no interest in the estate of ZW, and that the word them in the phrase the
persons entitled to succeed them refers to the legitimate and illegitimate children of the deceaseds mother.
Where the deceaseds mother does not survive him, his mothers ancestors or her collateral descendants
from such ancestors cannot claim.
Appeal dismissed.
No cases referred to
Appeal

Appeal by the applicant from the judgment of the Supreme Court of British Guiana (Trial DivisionStoby J)
dated 6 July 1955, dismissing the application. The facts appear in the judgment.
Haynes (instructed by Vanier) for the appellant
Farnum Solicitor-General (instructed by Crown Solicitor) for the respondent
HALLINAN CJ. In this case, the appellant has been refused a grant of letters of administration on the
ground that he has no interest in the estate of Zuleika Angelina White.
Zuleika White died leaving no descendants. She was the illegitimate child of one Catherine Bruce.
Catherine Bruce was herself the illegitimate child of Maria Henry and from Maria Henry are descended the
appellant and various other persons who are claiming an interest in the estate of Zuleika White.
It is contended for the appellant that on the true interpretation of s 11 (2) of the British Guiana
Illegitimacy Ordinance 1932, the appellant is entitled to letters of administration as he and all the other
persons I have mentioned are entitled to succeed to Zuleika White.

23
The words to be interpreted are:
Where, after the commencement of this Ordinance, an illegitimate child, not being a legitimated
person, dies intestate of all or any of his property, his mother if surviving shall be entitled to take any
interest therein to which she would have been entitled if the child had been born legitimate and she
had been the only surviving parent and if his mother does not survive him then such legitimate and
illegitimate children of his mother as survive him and the persons entitled to succeed them on intestacy
shall be entitled to take an interest therein to which they would have been entitled if all such children
and the child had been born legitimate.
On the plain reading of that section, I agree with the decision of the learned trial judgethat the
applicant has no interest in the estate of Zuleika White.
The word them in the phrase the persons entitled to succeed them refers to the legitimate and
illegitimate children of the deceaseds mother. Where the deceaseds mother does not survive him, his
mothers ancestors or her collateral descendants from such ancestors cannot claim.
I consider that the appeal should be dismissed.
RENNIE J. I concur.
ARCHER J. I concur.
Appeal dismissed.

(1958) 1 WIR 24

Letter T Estates Ltd v Heald And Others

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
17, 18, 19 JUNE, 4 JULY 1958

Private company Restriction on transfer of shares Whether legatees of deceased shareholder are
entitled to be registered as shareholders Articles of association, clauses 15, 25 and 26.
Shares in a private company were bequeathed to VR and OJ. Under the articles of association of the
company, the shares could not be transferred to the legatees until they had been offered for sale to its
members who are entitled to purchase them at a fair value to be determined by a declaration of three
directors or failing such a declaration by a certificate of the companys auditors. The executor of the
deceased shareholders estate offered to sell the shares to members of the company. The directors
declined to make the declaration determining the value of the shares but the value of each share was fixed
at $410 by reference to a certificate of the companys auditors. This certificate was prepared for purposes of
estate duty. Three members agreed to purchase the shares at that value VR and OJ objected to the sale.

The executor by an originating summons asked the court for directions as to whether he should execute
transfers of the shares to the three members or transfer half to VR and half to OJ.
Held: (i) that under the articles of association of the company the offer to sell the shares should have been
made by VR and OJ, the persons beneficially entitled to the shares, and not by the executor whose offer is a
nullity.
(ii) a fair value of the shares has not been ascertained.
(iii) (Archer J, dissenting) VR and OJ should now offer the shares for sale and the fair value should be
ascertained by the auditors, as at the date of the offer, but if the value should be greater than the value of
the shares at any time during the three months ensuing after the deceaseds death, then the fair value
should be the highest valuation which the auditors might have placed on the shares during that period.
Direction accordingly.
Editorial Note. This case is on appeal to the Judicial Committee of the Privy Council.
No cases referred to
Appeal
Appeal by the company from the decision of the Supreme Court of British Guiana (Trial DivisionMiller J
(Ag)) dated 25 September 1957, whereby the executor was directed to execute two transfers of the shares
one for 121 24shares to VR and the other for 121 shares to OJ The facts appear in the judgment of Hallinan
CJ.
Elliott (instructed by H C B Humphrys) for the appellants
Carter (instructed by Carlos Gomes) for the first-named respondent
Burnham (instructed by L B Martin) for the second and third respondents
Stafford QC, for the members served with notice
HALLINAN CJ. Sophia Musterd died on 19 October 1956, bequeathing a legacy of shares in a private
company called Letter T Estates, Limited, to the second and third defendants, Victorine Roberts and Oscar
James. Probate of her will was granted on 25 January 1957.
Under the articles of association of the company the shares could not be transferred to the legatees until
they had been offered for sale by the company to its members who were entitled to purchase them at a fair
value to be determined by a declaration of three directors of the company and, if the directors made no such
declaration, then by a certificate of the companys auditors. In fact, the directors declined to make a
declaration. The auditors gave a certificate valuing the shares at $410.00 each as at 19 October 1956 (the
date of the deceaseds death), and this certificate was filed for the purposes of the computation of the estate
duties on 9 January 1957.
On 20 January 1957, Miss Musterds executor, the plaintiff, Stanley Heald, wrote to the legatees
informing them that the shares had been valued at $410.00 and explained that under the articles of
association of the company the shares had first to be offered to members of the company and asked for
instructions. The legatees lawyer on 7 February 1957, wrote to the executor asking for details of the
companys finances and on the same day the executor wrote to the company giving notice of his desire
pursuant of article 25 to transfer the shares ... and to comply with article 15. On 22 February 1957, the
company replied that three shareholders (who on the application of the company have been joined as
defendants and have appeared at the hearing of this appeal) had accepted the offer to buy the shares at
$410.00 each.
In consequence of communications received from the legatees counsel, the executor has applied to the
court for direction as to whether he should transfer these shares to the three shareholders or transfer half
the shares to one legatee and half to the other.
It is convenient at this stage to set out the provisions of articles 25, 26 and 15 of the companys articles
of association:
25. The heirs, executors or administrators or other legal representatives of a deceased member
(not being one of several joint-holders) shall be the only persons recognised by the company as having
any title to the shares registered in the name of such member, and in case of the death of any one or
more of the joint-holders of any registered shares, the survivors shall be the only persons recognised
by the company as having any title or interest in any such shares.

26. Any guardian of any infant member and any curator or committee of a lunatic member, and any
person becoming entitled to shares in consequence of the death or insolvency of any member upon
producing such evidence that he sustains the character in respect of which he proposes to act under
this clause, or of his title as the directors think sufficient, may with the consent of the directors (which
they shall not be under any obligation to give) be registered as a member in respect of such shares, or
may, subject to the regulations as to transfers here in before contained, transfer such shares. This
clause is hereinafter referred to as the transmission clause.
15. Any person, (not a member or the son, daughter, grandson, grand: daughter, or other issue,
brother, sister, husband or wife, nephew or niece, 25of a member) becoming entitled to shares in
consequence of the death of any member, shall within three months after his so becoming entitled,
offer the shares to members or in default of members to persons selected by the directors in
accordance with the provisions of the clauses 8, 9 and 10 hereof as far as is applicable, and the
provisions of clauses 8, 9, 10, 11, 12 and 13, and 14 hereof shall mutatis mutandis, and so far as they
can be made applicable be deemed to apply to such shares, and the purchaser of such shares, shall
be entitled, without making any payment therefor, except the fair value and costs of transfer to all the
shares held by such deceased person.
Articles 8 to 13 contain the usual provisions relating to the transfer inter vivos of shares in a private
company. If a member wishes to transfer his shares and is not transferring to a near relative he informs the
company that he wishes to sell. The company, as his agent, must within one month find the members willing
to buy. If there are such, transfer must be made to them at a fair price. If within three months the company
finds no member willing to buy, the intending transferor may sell or transfer to anyone at any price.
When the executor wrote the letter of 7 February 1957, to the company, both the executor and the
company considered that it was for the executor acting in right of his office and without obtaining authority
from the legatees to offer to transfer the shares to members of the company willing to buy. This is still the
contention of the company and the three shareholders in these proceedings. On behalf of these parties two
alternative interpretations of the articles of association have been put forward either of which would entitle
the executor to make the offer without the legatees authority. First, that he is the person becoming entitled
to the shares on the deceaseds death under article 25, and is entitled to be registered as a member in
respect thereof under article 26 or transfer them in accordance with articles 9 to 13. Secondly, that article 15
should be construed as if after the opening words any person there were inserted the words where the
beneficial owner is. The words any person would then, in the circumstances of the instant case, only refer
to the executor who under articles 25 and 15 would be the proper person to make the offer.
In my view, both these interpretations are untenable. The plain meaning of article 15 is that the words
any person means a person becoming entitled to the beneficial interest in the deceaseds shares who is
not a member or a close relative of a member. It may well be that this article was drafted without due regard
to modern company law and practice, to the powers and duties of executors in dealing with a testators
shares, and especially to article 25. Article 25 provides that the heirs, executors or administrators shall be
the only persons recognised by the company as having title to the deceaseds shares, but this does not
constitute them the persons to make the offer to transfer which under article 15 is conferred on those
beneficially entitled to the shares. There is no irreconcilable conflict between articles 25 and 15. In article
25, title means the legal title,and executor, qu executor, has nothing more. The reference in the same
article to the survivor of a joint-holder having a title and interest strengthens this interpretation. In article 15,
the words becoming entitled, taken in their context, refer to the beneficial interest. Nor, in my view, can
article 15 be passed over and ignored so that the executor proceeds under articles 25 and 26 and articles 9
to 13 alone. Some play has been made with the fact that the executor in this case is also the holder in the
company of some shares as nominee of the deceased, but I am unable to see how this positionqu
nomineecan entitle him to make an offer on behalf of the legatees and without their authority.
Counsel for the legatees did not seem much concerned as to whether it was for the executor to make
the offer or for the legatees under article 15. His main endeavour was to show that, however one interprets
the articles of association,

26
members of the company had lost their right to purchase the deceaseds shares, and the executor must
transfer them to the legatees. Counsel submitted that if the executor was entitled to make the offer without
the authority of the legatees, the provisions of the articles had not been observed as the fair value of the
shares had not been properly ascertained. More than three months had elapsed since the offer and,
therefore, the legatees were entitled to have made the offer then the legatees having failed to comply with
article 15 and the directors having taken no legal steps to compel them to do so, the restrictions on the right
to transfer were removed and the executor should transfer the shares to the legatees.
The submissions made by counsel for the legatees are, except on one point, without substance. It was
the duty of the legatees to offer the shares to members within three months of the deceaseds death. They
have failed to do so through no fault of their own, but their duty to make the offer still continues and this

court should now direct them to do so. I accept counsels submission that the fair value has not been
properly ascertained. Unless there are special circumstances (which do not exist in the present case) the
purchase price under a contract is normally the price of the subject-matter when the offer is made; and the
auditors certificate in the present case was given before the offer. However, the companys notice that
members were prepared to purchase which was given under article 10 within one month of the offer was not
invalid because the fair value had not been properly ascertained.
The true position, in my view, is that the offer made by the executor on 7 February 1957, was a nullity
since he was not the person required by article 15 to make this offer. The court should now direct the
legatees to comply with that article and make the required offer. The fair value should be ascertained by the
auditors as at the date of the offer, but if this value should be greater than the value of the shares at any time
during the three months ensuing after the deceaseds death, then the fair value should be the highest
valuation which the auditors might have placed on the shares during that period.
The executor and the company are entitled to have their costs of this appeal out of the estate. There
will be no order as to costs with regard to the shareholders or to the legatees. The order of the court below
with regard to the legatees costs is affirmed.
RENNIE J. I concur.
ARCHER J. I have had the advantage of reading the judgment which has been delivered. I differ from the
other members of the court in so far as the judgment contains a direction to the beneficiaries to offer their
shares to the respondents who have been made parties to this appeal and to the effective date for
ascertainment of the fair value of the shares.
Article 15 of the companys articles of association has been inartistically drawn and probably does not
cover all the cases that can arise under it. Whether the expression the person becoming entitled to the
shares in consequence of the death of deceased member was intended to refer to the legal representative
of the deceased member or to the person succeeding to the beneficial interest in the shares is, in my
opinion, quite indeterminate. But in the view that I take it does not matter, for purposes of a direction to the
executor in this case, whether it refers to him or to the beneficiaries who are respondents. It is at least clear
that an offer of the shares should have been made within three months of entitlement to them. Miss Musterd
died on 19 October 1956, and her will was admitted to probate on 25 January 1957, so that when the trial
judge gave his direction on the originating summons the time limit for offering the shares had expired. The
executor is the only person recognised by the company as having any title to the shares and any offer of 27
the shares must have been made through him. Such an offer was made, admittedly by the plaintiffrespondent as executor and not on behalf of the beneficiaries, but equity treats as done that which ought to
have been done and I do not think that the beneficiaries can be heard to say that his offer was invalid
because they were the persons to make the offer and they had not, and thus to rely on a breach of their own
obligation to establish the invalidity of the offer.
In my view, therefore, the only outstanding matter is that of ascertainment of the fair value of the shares
for there has already been offer and acceptance. I would have directed the executor to transfer the shares
to the added respondents on payment of the ascertained fair value which should be the value of the shares
on 7 February 1957, the date of the offer.
I agree with the proposed order as to costs.
Direction accordingly.

(1958) 1 WIR 28

Heeralall v Shivcharran
FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
19, 20 JUNE, 4 JULY 1958

Procedure Barrister acting as a solicitor Effect of statement in the writ that the subject-matter does not
exceed $500 British Guiana Legal Practitioners Ordinance, Cap 30, s 42 (1) B (c).
Title to land Effect of sale for rates Necessity to have the land correctly described in the notice and
advertisement Where statutory procedure is not followed prior title will not be affected.

A barrister acted as solicitor for the plaintiff in the suit. The British Guiana Practitioners Ordinance, Cap 30,
s 42 (1) B (c), provides that a barrister may act alone, in cases where the thing in dispute or alleged in the
statement of claim, does not exceed $500. The writ contained a statement that the value of the subjectmatter of the action does not exceed $500, but the statement of claim contained no such allegation.
Prior to 1940, each of the predecessors in title of both H and S had title to an undivided half of a lot of land
known as Lot 13 E. In 1940 Ss immediate predecessor in title got the District Authority to put up Lot 13 B
for sale for non-payment of rates, and he bought it. His document of title for this purchase described the
land as Lot 13 B as shown on a plan by Fowler of 1892. But when he sold to S in 1946 the land was
described as Lot 13 B as shown on Fowlers plan of 1895. The plan of 1892 contained no subdivision of Lot
13 so apparently the change was made to the 1895 plan. But Lot 13 B of the plan of 1895 is not a part of
Lot 13 E; it is a separate and distinct lot. There is a plan by Seymour of 1908 which shows Lot 13 B as the
southern half of Lot 13 E.
By an arrangement between H and S, H allowed S to occupy the most easterly portion of Lot 13 E together
with the most easterly portion of Lots 13 F and 13 G which H owned to the south of Lot 13 E In return S
gave H exclusive occupation of some rice fields more to the west in Lot 13 E.
H entered on the land in Ss possession and disturbed his enjoyment of it. 28S brought an action against
him claiming a declaration that he is the owner of the southern half of Lot 13 E and seeking an injunction
and damages.
Held: (i) the omission to state in the statement of claim that the thing in dispute does not exceed $500 is an
irregularity and does not affect the validity of the writ and subsequent proceedings.
(ii) Where the procedure by parate execution for non-payment of rates is adopted, it is of vital importance
that the notice demanding rates and the advertisement before the transport is passed should contain a
correct description of the land to be sold in execution. The sale and transport of a property not mentioned in
the notice or in the advertisement are both invalid. This is no question of mere mistake that can be rectified
but a failure to perform a condition precedent to the sale and passing of the transport. The transport is bad
and cannot stand against Hs right to an undivided share in Lot 13 E.
Appeal allowed.
Cases referred to
Sanichari v Etwar and another (1945), LRBG 77
Coddett v Thomas No 11 of 1957 of British Guiana
Appeal
Appeal by the defendant from the judgment of the Supreme Court of British Guiana (Trial DivisionBoller J
(Ag)) dated 26 July 1957, whereby the plaintiff was granted the relief he claimed.
Section 42 (1) B (c) of the British Guiana Practitioners Ordinance, Cap 30, provides:
Notwithstanding anything to the contrary in any Ordinance or rule, a barrister or a solicitor shall be
entitled to act alone and have audience in any other cause or matter where the writ is not specially
endorsed in which the sum of money claimed or the value of the land or thing in dispute as alleged in
the statement of claim does not exceed the sum of five hundred dollars.
The facts appear in the judgment of Hallinan CJ.
L Luckhoo QC (instructed by Carlos Gomes) for the appellant
Hardyial and Rahaman (instructed by Persram) for the respondent
HALLINAN CJ. The plaintiff-respondents claim is for a declaration that he is entitled to certain land; for
$500.00 as damages and compensation for wrongful and unlawful dispossession of his occupation and
ownership; and for an injunction.
It is not clear from his pleadings whether the respondent was in possession when he brought these
proceedings, but the learned trial judge treated the claim as one for trespass. At p 35 of the record he
states: the important question now arising for determination is whether the defendant had committed
trespass ... and at p 54 he (that is the plaintiff-respondent) does not seek to recover possession of the
land....

It is convenient to deal first with the ground of appeal in limine, namely, that the writ and subsequent
proceedings are void because the barrister who signed and issued the writ was not entitled to do so and
under the authority of the decision in Sanichari v Etwar and another ((1945), LRBG 77.) the writ and all
subsequent proceedings must be set aside.
The British Guiana Legal Practitioners Ordinance, Cap 30, s 42 (1) B (c), provides that a barrister may
act alone in cases where the writ is not specially endorsed or where the sum of money claimed or the value
of the land or thing in dispute or alleged in the statement of claim does not exceed the sum of $500.00. The
writ in the present case is not specially endorsed. It contains a statement that the value of the subjectmatter of the action does not exceed $500.00, but the statement of claim contains no such allegation.
For the defendant-appellant it has been submitted that this allegation must be made in the statement of
claim and that the writ and subsequent proceedings 29 are a nullity. Neither the damages claimed nor the
value of the land exceed $500.00 so that apart from the words an allegation in the statement of claim the
barrister might have issued the writ. In my view, these words are inserted by the legislature so that, in an
action on a writ not specially endorsed, the statement of the money claimed or the value of the land or thing
in dispute should be made known to the court and to the other party at the earliest stage of the proceedings
and, therefore, objection may be taken as early as possible to the irregularity. If the plaintiff gives these
particulars in his writ, as he did in the present case, it would be contrary to the objects and intentions of the
statute to hold that the plaintiff had not fulfilled these requirements when he inserted the required particulars
in his writ rather than in his statement of claim. For this reason I think this ground of appeal fails.
The trial judge has expressed his disagreement with the decision in Sanicharis case (Sanichari v Etwar
and another (1945), LRBG 77), that the writ and proceedings were a nullity. As a judge of the Supreme
Court has disagreed with a decision of the Supreme Court given by an able and learned Chief Justice, I
think it appropriate to express an opinion in this Court of appellate jurisdiction. With deference to the Chief
Justice, I consider that the issue of a writ by a barrister in excess of his powers under s 42 of the British
Guiana Legal Practitioners Ordinance is an irregularity not a nullity. Part III of that Ordinance defines the
functions of barristers and solicitors; in other words, it concerns the functioning of the legal profession; it is
not intended to affect the rights or obligations of litigants. Order 3, rule 6, of the Rules of the Supreme Court
of British Guiana, 1955 (which reproduces the previous rule), provides that a writ of summons shall be
issued by the plaintiff or his solicitor; and rule 8 provides that the solicitor must produce a written authority
from the plaintiff. A barrister and a solicitor are the agents of their clients recognised and approved by the
law and practice relating to procedure. If proceedings are instituted by a member of the legal profession
without the authority of the apparent plaintiff this is so fundamental a flaw as to make the proceedings a
nullity. But in the present case without doubt the plaintiff authorised the proceedings. Merely because a
plaintiff employs a barrister as his agent to issue a writ and because of certain statutory provisions regulating
the internal functioning of the legal profession the plaintiff should have employed a solicitor, I do not think
that either the Ordinance (Cap 30) or the principles of legal procedure require that the issue of the writ
should be a nullity or invalidate all subsequent proceedings. Moreover the provisions of the Ordinance can
be adequately enforced by the court providing that a solicitor be employed and by making provision for the
costs of any application brought to draw the attention of this court to the irregularity or to cure it.
Turning to the substance of this case, it concerns a dispute about ownership of land, each party relying
on a transport as the document of title is called in British Guiana.
The documentary title of the defendant-appellant is perfectly clear. His predecessor in title obtained a
transport in 1895 of a parcel of land described as Lot 13 E at Cotton Tree on a plan of a Mr Fowler dated
1895. In 1901 this land was conveyed to two persons, Gangadin and Dhanraj, in undivided shares.
Gangadins share was passed by transport in 1904 to the appellants father, who passed it to the appellant
by transport in 1935.
Fowlers plan of 1895 shows Lot 13 at Cotton Tree divided into long thin strips 1,000 rods by 2 rods.
Dhanraj had left the undivided half share in Lot 3 E to his wife but probate of the will was never obtained;
she left this half share to Shivbarath by will and probate was granted thereof. This is the evidence of
Shivbarath. He also stated that by agreement between Gangadin and Dhanraj the long strip Lot 13 E was
divided along the whole of its 1,000 rods length into two. Gangadin took the northern half1,000 rods by 1
rodand Dhanraj took the southern half having the same dimensions. This statement is

30
supported by two other witnesses for the respondent Adbul Karim and Seenanan. There is also a
plan by a Mr Seymour prepared in 1908 apparently at the request of some proprietors at Cotton Tree and
lodged in the Lands and Mines Office. This adopts different lettering to Fowlers plan but a comparison
shows that on Seymours plan Lot 13 E of Fowlers plan is divided in two, the northern half having the letter
C and the southern the letter B Cotton Tree came under the Local Government Board in 1935 and it appears
that some rates were levied and collected on the basis of Seymours plan. The respondent has been paying
rates on what his receipts described as Lot 13 B Cotton Tree since 1947.
There was evidence which the trial judge accepted that by arrangement between the appellant and the
respondent and for the convenience of working their land for growing rice the appellant allowed the

respondent to occupy the most easterly portion of Lot 13 E together with the most easterly portion of Lots 13
F and G (Fowlers plan 1895) which the appellant owned to the south of Lot 13 E. In return the respondent
has given the appellant the exclusive occupation of some rice land more to the west in Lot 13 E.
Upon the evidence the trial judge found that:
from the year 1901, Shivbarath and his predecessors in title, that is to say, his aunt Rhi and her
reputed husband Dhouray, had been in the sole and undisturbed possession of this sub-lot of land nec
vi, nec clam, nec precario.
and further on he stated:
It is clear that, in spite of the fact that both Nasib and Dhouray had transports for one undivided
half part or share in the particular sub-lot 13; it was their intention that they should occupy each a
particular half of the sub-lot.
There was sufficient evidence to support these findings but I am unable to accept the trial judges final
conclusion on this part of the evidence:
In view of the conduct of both plaintiffs and the defendants predecessors in title in occupying each
a portion of the said sub-lot, prior to the year 1908, and presumably from the year 1901, when
transport was passed to them, I hold that the defendant is now estopped from setting up his transport
No 72 of 1935Exhibit R as owner of the undivided half part or share of sub-lot E of lot number 13,
Cotton Tree, as shown on Fowlers plan of 1895 in defence to this action for trespass.
The respondent did not plead any prescriptive title to the sub-lot he now claims (that is the southern half of
Lot E); nor has he pleaded estoppel. He has chosen to rely on a transport which he obtained in
circumstances which I shall now proceed to examine.
In 1940 Shivbarath took a step which has led to the dispute in this case. It would have been simple for
him to have obtained probate of Dhanrajs will and to have obtained a transport of Dhanrajs interest, that is
to say one undivided half share in Lot 13 E; alternatively, if the appellant and Shivbarath had agreed to
partition the land into divided shares, they could have gone to the Deeds Registry and obtained transports to
this end.
But Shivbarath chose to obtain title by a fictitious action. He allowed a judgment to be entered against
him for rates on Lot 13 B Cotton Tree (the letter on Seymours plan used perhaps for rating purposes) and
on his failure to satisfy the judgment Lot 13 B was sold by the Marshal whereupon Shivbarath bought it. The
transport he obtained is Exhibit G, and described the property as Lot 13 B as shown on a plan by Fowler of
1892. In 1946 Shivbarath sold his interest to the respondent but in the transport or conveyance the property
sub-lot B of Lot 13 is stated to be shown on Fowlers plan of 1895 not 311892. The plan of 1892 contained
no sub-division of Lot 13 so apparently the Registrar altered the transport so as to refer to the 1895 plan.
But the description in the transport is still wrong, for Lot 13 B on the plan of 1895 is not the property in
dispute (that is the southern half of Lot 13 E); Lot 13 B on that plan is a completely different parcel of land in
the possession of one Shaikh Mahamad under a valid transport No 959 of 1956.
The trial judge came to the conclusion that the reference to Lot 13 B on the plan of 1895 was a mistake
for Lot 13 B on Seymours plan of 1908, and he ordered that the respondents transport be rectified by
substituting Seymours plan of 1908 for Fowlers plan of 1895. This order of course means that the
appellants title is altered so that instead of having an undivided half share in Lot 13 E on the plan of 1895
the respondent has the exclusive right to the southern half.
I have said that the procedure which Shivbarath adopted to obtain title was a fictitious sale. In some
way not disclosed in evidence he procured the Country Authority of Cotton Tree and Zoo Sight Country
District to issue a notice stating that $3.13 was due for Village Sanitary rates on Lot 13 B of Cotton Tree and
the form of notice stated that if the rates were not paid within 2 weeks, application would be made to the
Magistrate for a warrant to recover the rates by sale. This is a form of summary execution available to
recover rates, known as parade execution. Although Shivbarath states that half of his house was built on
the land in dispute and half on the appellants land (with the consent of the appellants father Misshape) the
notice (according to the endorsement of the Bailiff) was affixed to a post there being no building on the lot.
We have been invited by his counsel to infer that the notice was affixed on the southern half of Lot 13 E of
Fowlers plan of 1895 but I can find no sufficient evidence for this assumption. As the rates were not paid
pursuant to this notice, Lot 13 B Cotton Tree was sold by the Marshal. Shivbarath bought it for $3.40. In
accordance with the rules made under the Deeds Registry Ordinance, Lot 13 B Cotton Tree was advertised
for three successive Saturdays. The form of execution being parade or summary, no inquiry was made as
to the documents of title of the judgment debtor Shivbarath as purchaser of Lot 13 B Cotton Tree on
Fowlers plan of 1892. Apparently, the Registrar did not even check the verbal description against the plan.

It is disturbing to consider that these fictitious sales by parade execution could in 1940 give an
indefeasible title. I understand that now some inquiry is made into the title of the judgment debtor. The
procedure by parade execution for non-payment of rates is more like a procedure in rim against the land
upon which rates are levied. Since the procedure is to affect persons not parties to the proceedings and
execution issuing without any hearing in court, it is of vital importance that the notice demanding rates and
the advertisement before the transport is passed should contain a correct description of the land to be sold
in execution. the sale and transport of a property not mentioned in the notice or in the advertisement are in
my view both invalid. This is no question of mere mistake that can be rectified but a failure to perform a
condition precedent to the sale and the passing of the transport. This transport is bad and cannot stand
against the appellants right to an undivided share in Lot 13 E.
I do not consider that the trial judges finding that there was an agreement between the parties whereby
the respondent has the occupation of certain rice lands and that the appellant committed a trespass in
breach of this agreement, should be disturbed, and I think the damages which he awarded should stand and
the counter-claim should fail. This agreement appears to be in the nature of a licence for each party to use
a portion of the others land. This would be terminable on reasonable notice. Since 1953 the appellant had
forcibly indicated that he wished to terminate this agreement; it must be assumed that the

32
respondent has had reasonable notice and the agreement is at an end. The appellant is now entitled to
treat the agreement as terminated.
I should like to add that it now seems in the interests of both parties that Lot 13 E should be partitioned
and that the respondent should surrender his transport for an undivided half and accept one for an exclusive
right to the northern half while the appellant obtain a transport to the southern half. The court in these
proceedings cannot order partitionit can only appeal to the common sense of the parties.
In my view the order of the court below should be set aside and the respondents claim for a declaration
and injunction dismissed.
The respondent is entitled to $150 damages for trespass to the respondents possession under an
agreement with the appellant for the use and occupation of certain rice land.
The respondent to pay three-quarters of appellants costs here and in the court below.
The respondents transport No 285 of 1946 to be cancelled.
RENNIE J. I concur.
ARCHER J. I only desire to add that I would have felt compelled even in the absence of authority to hold
that the Registrar of Deeds was incompetent when passing transport to the respondents predecessor in
1940 to so alter the description of the land as to deprive the appellant of his title because the appellant held
transport for an undivided share in the same parcel of land since 1933, but the decision of the West Indian
Court of Appeal in Coddett v Thomas (No 11 of 1957 of British Guiana.) places the matter beyond dispute.
In that case the Registrar also made an authorised change in description and the court in language which is
peculiarly appropriate to the circumstances of this case said:
... we can see no reason ... why a later title to a particular piece of land should be indefeasible qua
a prior one which was also indefeasible, unless the statutory procedure is followed .... In the absence
of express statutory provision to the contrary it would be against the dictates of justice to allow the
respondent to be victimised by the unauthorised and illegal act of the officer in question.
I adopt that reasoning. I agree with the conclusions reached by the other members of this court on the
preliminary point that has been argued, and on the substance of the appeal, and with the proposed order as
to costs.
Appeal allowed.

(1958) 1 WIR 33

New India Assurance Co Ltd v Bacchus

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
24, 25, 26 JUNE, 4 JULY 1958

Marine insurance Variation between slip and policy Total loss only Actual total loss Notice of
abandonment Constructive total loss.
On 18 December 1953, Bacchus insured a cargo of 50 logs of greenheart timber with the New India
Assurance Co for $4,000. The timber was to be transported from Bartica to Georgetown on the punt
Allerton On 21 December while in the course of the voyage, and about four miles from the coast, the logs
worked loose from the slings owing to continuous heavy weather, and being greenheart sank in the sea.

33
The insurance slip issued on 18 December insured the logs against total loss only, but the policy which
was issued on 28 December after the loss of the logs had been reported to the insurance company, purports
to insure them against actual total loss. On or about 22 December Bacchus reported the loss to the
insurance company. On or about 28 December the insurance company engaged the services of a diver to
search for the logs. A search lasting five or six hours was made, but failed to locate the logs. On 29
December Bacchus regarded the logs as lost, informed the insurance company and demanded payment.
Held: (i) the obligation of the insurance company originated in the slip and the real bargain was that which
appeared in the slip.
(ii) Bacchus was entitled when he discovered that the logs could not be located at the bottom of the sea to
treat the loss as a constructive total loss.
Appeal dismissed.
Cases referred to
Symington & Co v Union Insurance Society of Canton (1927), 34 Com Cas 235, 164 L T Jo 390
The Aikshaw (1893), 9 TLR 605
Roux v Salvador (1836), 3 Bing NC 266, 2 Hodg 209, 4 Scott, 1, 7 LJ Ex 328, 132 ER 413, Ex Ch, 29 Digest
263, 2129
Rickards v Forestal Land, Timber & Rys Co, Robertson v Middows, Ltd, Kann v Howard Bros & Co Ltd
[1941] 3 All ER 62, [1942] AC 50, 110 LJKB 593, 165 LT 257, 57 TLR 672, 46 Com Cas 335, HL, 2nd
Digest Supp
Appeal
Appeal by the New India Assurance Co, Ltd, from the judgment of the Supreme Court of British Guinea (Trial
Division Phillips J) dated 31 October 1957, in favour of the plaintiff for $4,000. The facts appear in the
judgment of Hallinan CJ.
H A Fraser and King (instructed by J Edward de Freitas) for the appellants
Stafford QC (instructed by A G King) for the respondent.
HALLINAN CJ. On 18 December 1953, the respondent insured for $4,000 a cargo of 50 logs of greenheart
timber to be transported from Bartica to Georgetown on a punt called the Allerton. On 21 December while
about four miles out to sea from the coast in the course of the voyage, owing to continuous heavy weather,
the timber worked loose from the slings and being greenheart sank in the sea. The insurance slip issued on
18 December insured against total loss only but the policy which was issued on 28 December purports to
insure against actual total loss. On 29 December the respondent regarded the logs as lost, informed the
appellants and demanded payment of the sum assured. The appellants have refused to pay, and, in this
action brought by the respondent against them, the learned trial judge has found for the respondent in these
words:
In my judgment, therefore, the plaintiff was entitled, when he discovered that the logs could not be
located at the bottom of the sea on 28 December to treat the loss as a constructive total loss, to give a
notice of abandonment and to claim from the insurers the amount insured in the policy, viz : $4,000.
This appeal has been argued on two submissions first, that the policy only covered actual total loss
and not constructive total loss; and secondly, that even if the respondent was insured against constructive
loss, in the facts and circumstances of this case, there was no constructive loss within the provisions of ss
60 to 63 of the Marine Insurance Act, 1906, which is in force in British Guiana by virtue of the British Guiana
Law of Merchant Shipping Ordinance, Cap 3.

34
As regards the first submission, the statement of claim asked for rectification of this policy on the ground
that the insertion of the words actual total loss in the policy was due to fraud or common mistake; the trial
judge found that the parties intended that the policy would be issued in accordance with the slip and that the
policy should be rectified not on the ground of fraud but of common mistake. While counsel for the
appellants was addressing this court, it became apparent that rectification could not be supported on the
ground of common mistake and this court permitted the appellant to amend his statement of claim so as to
allege that the appellants by inserting the words actual total loss instead of the words contained in the slip
namely total loss only were in breach of their contract of insurance.
There is no uncertainty or ambiguity whatever in the meaning of the words used. Subsections (2) and
(3) of s 56 of the Marine Insurance Act, 1906, are as follows:
(2) A total loss may be either an actual loss or a constructive loss.
(3) Unless a different intention appears from the terms of the policy, an insurance against total loss
includes a constructive as well as an actual total loss.
The cover of an assured under a policy of total loss is wider than under one of actual total loss. For the
purposes of this case, it is sufficient to point out that to establish actual total loss the subject-matter insured
must be so damaged or destroyed as to cease to be a thing of the kind insured or the assured has to be
irretrievably deprived of it; but since total loss includes constructive loss, the assured under s 60 (1) of the
Act of 1906 can recover where the subject-matter is reasonably abandoned on account of its actual loss
appearing to be unavoidable or because it could not be preserved from actual total loss without an
expenditure which exceeds its value where the expenditure had been incurred.
The legal position with regard to the insurance slip and the policy is summarised in the following
passage from 22 Halsburys Laws 3rd Edn, at p 40, paragraph 67:
The insurance slip is in practice, and according to the understanding of those engaged in marine
insurance, the complete and final contract fixing the terms of the insurance and the premium, and
neither party can without the assent of the other deviate from the terms agreed on without a breach of
faith.
In Symington & Co v Union Insurance Society of Canton, Ltd ((1927), 34 Com Cas 235, 164 L T Jo 390.) (34
Com Cas at p 235) Scrutton LJ, said:
I think, however, that the question of liability of the underwriters can be decided without going
further into the matter. The obligation of the underwriters originated in the slip, and their duty, in
honour if not in law, was to reproduce the terms of the slip in the policy. If an insurance company
wishes to make their obligation as expressed in the policy differ from the obligation which they have
undertaken in the slip they must reserve in the slip power to make such alteration. Without such
power, where there is a total contradiction between the terms of the slip and those of the policy, the
terms of the slip must prevail.
Having given the respondent leave to amend his statement of claim, this court allowed the appellants
leave to deliver an amended statement of defence to meet the claim for rectification on a ground other than
common mistake or fraud. I do not consider that any of the defences. put forward against rectification on
the ground of breach of contract have been established. It is only necessary to refer to three of these
defences. First, the fact that on five previous occasions, slips issued to the respondent for the insurance of
logs in

35
transit had contained the words total loss whereas the policies had contained the words actual total
loss, does not materially affect the case. The insertion of the word actual in the policy might well escape
the attention of an assured and, not being versed in the law of marine insurance, he probably would not
appreciate the materiality of the word. It was the duty of the appellants to inform him of what they were
doing. In the circumstances, the respondent is entitled to rely on the words total loss used in the slip.
Secondly, the court in rectifying the policy is not bound to find common mistake or fraud; it can rectify so
as to make the policy correspond with the terms of the slip if the departure amounts to a breach of the
appellants obligation under the slip. This is not a case of rectification of a contract it is not rectification in
the sense in which it is usually used. The contract itself (which is the slip) is not rectified; the insurer is in
breach of his agreement if he fails to honour it and the measure of damages is the amount due on the
insurance. Because of the law relating to stamp duty, the assured must sue on the policy which is stamped,
and not on the slip; and there is an implied agreement that the insurer will issue a policy in accordance with
the slip. (See 22 Halsburys Laws 3rd Edn, p 41, paragraph 67.)

The case of The Aikshaw ((1893), 9 TLR 605.) is one where the plaintiffs, as underwriters, reinsured
with the defendant company who issued an insurance slip and later issued a policy into which was inserted
two words not contained in the slip. Because of these two words they disclaimed liability under the policy
and refused to rectify the policy or issue another. The plaintiffs claimed that the defendants had committed a
breach of the agreement contained in the insurance slip and obtained judgment in their favour on the ground
that the real bargain was that which appeared in the original slip. This case of The Aikshaw ((1893), 9 TLR
605.) is directly in point for there was no question of fraud or common mistake as the claim was based on
breach of the agreement contained in the insurance slip.
Thirdly, the appellants in answering the respondents claim for rectification on the ground of breach of
contract, is not entitled at this stage to counter-claim for rectification of the reference to the name of the
launch which towed the punt. The tug Davy had towed the punt and the appellants themselves put this
name in the policy. It is much too late for them to allege that because the respondent did not use the tug
Voyager mentioned in the slip that he committed a breach of the contract.
For these reasons the first ground of appeal fails.
The question involved in the second ground of appeal is whether the respondent when he gave notice
of abandonment on 29 December was in possession of information both reliable and sufficient to justify him
in treating the logs as a constructive total loss as defined in s 60 (1) of the Act of 1906. Counsel for the
appellants has submitted that the test of whether or not goods are reasonably abandoned so as to constitute
constructive total loss is that laid down by Lord Abinger in Roux v Salvador ((1836), 3 Bing NC 266, 2 Hodg
209, 4 Scott, 1, 7 LJ Ex 328, 132 ER 413, Ex Ch, 29 Digest 263, 2129.), that is to say whether a prudent
merchant who was uninsured would abandon the cargo as a total loss; and counsel for the respondent has
referred us to the test applied in Rickards v Forestal Land, Timber & Railways Co Robertson v Middows,
Ltd, Kann v Howard Bros & Co Ltd ([1941] 3 All ER 62, [1942] AC 50, 110 LJKB 593, 165 LT 257, 57 TLR
672, 46 Com Cas 335, HL, 2nd Digest Supp.), namely whether a reasonable man would consider it unlikely
that he would recover his goods.
The relevant facts are that the appellants on 28 December employed a diver, Govia, to go out and try to
locate the logs and gave him $100 for this purpose. The respondent went with the diver and they searched
in the sea for five or six hours without any success. The respondent states that the water was about 9 ft
deep; the sea is notoriously muddy along the coast of British Guiana. In these circumstances, the
respondent the next day gave notice of abandonment.
Counsel for the appellants has drawn our attention to certain parts of the evidence to support his
contention that the respondent had no sufficient and reliable information to warrant abandonment. The
captain of the punt Allerton

36
said he had several times seen logs washed away and recovered from the sea with the aid of a diver.
The respondent said, I might have hired a diver if the goods were not insured to go and locate the spot. I
would have tried to recover those logs. It is true that the respondent did not hire a diver but the appellants
did and the respondent went with him. They did not locate the spot where the timber lay. Moreover, the trial
judge had to decide what the decision of a reasonable man or a prudent uninsured merchant would be, not
necessarily the opinion of the respondent as to what he might have done in hypothetical circumstances.
Counsel for the appellants also relied on the fact that after receiving another $250 from the appellant
company the diver went out again and located the logs on 29 December in a spot not indicated by the
captain of the punt. The appellants then made a contract with the diver to give him $2,000 for any logs he
should recover, the companys agent, Hayle, taking the view that if one log was recovered, the loss would
become only a partial loss. The diver carried on operations at neap tide when there was 6 ft 6 in. of water
where the logs were found in the mud on the sea bottom. By April 1954, 6 logs had been recovered, and by
July, 39 were recovered; after that, the cost of recovering more would be excessive and was abandoned.
I accept that what happens after notice of abandonment may assist in showing what the probabilities
really were if they had been reasonably forecasted. But in this case the appellant company had considered
it would defeat the respondents claim if one log were recovered and their persistence and subsequent
success proceeded from incentives that the ordinary uninsured merchant would not have had. Such a
merchant might well have thought, after searching the seas for five hours with the diver, that it was no use
throwing good money after bad.
Whether one adopts the test of the prudent uninsured merchant in Rouxs case (Roux v Salvador
(1836), 3 Bing NC 266, 2 Hodg 209, 4 Scott, 1, 7 LJ Ex 328, 132 ER 413, Ex Ch, 29 Digest 263, 2129.), or
of the reasonable man in Rickards case (Rickards v Forestal Land, Timber & Railways Co Robertson v
Middows, Ltd, Kann v Howard Bros & Co Ltd [1941] 3 All ER 62, [1942] AC 50, 110 LJKB 593, 165 LT 257,
57 TLR 672, 46 Com Cas 335, HL, 2nd Digest Supp.), I am not prepared to disturb the conclusion reached
by the trial judge after due consideration of s 60 (1) and applying it to the facts of this case.
Since this second ground also fails, I consider that the appeal should be dismissed with costs.
RENNIE J. I concur.

ARCHER J. I concur.
Appeal dismissed.

(1958) 1 WIR 37

Commissioner Of Income Tax v De Freitas

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
26, 27 JUNE, 4 JULY 1958

Income tax Additional assessment Request for statement of properties, investments and other assets
Nature of request Presence of material to ground request British Guiana Income Tax Ordinance, Cap
299, ss 40 and 50.
On 31 October 1955, S D was assessed for income tax in respect for income for the year 1954 and in
December 1955, he paid the tax so assessed. In October 1956, the Commissioner of Income Tax requested
S D to furnish him

37
with a complete and detailed statement of all properties, investments and other assets owned by him or by
his wife on 31 December 1954. On 4 February 1957, S Ds solicitor wrote to the Commissioner of Income
Tax asking the purpose of his inquiry. On 11 February 1957, the Commissioner of Income Tax replied that
the information he requested was for the purpose of the British Guiana Income Tax Ordinance, but without
stating for which purposes of the Ordinance he required it. S D thereafter took out an originating summons
to have s 40 (2) of the British Guiana Income Tax Ordinance construed by the court, in order to determine
whether he was compelled to comply with the request of the Commissioner of Income Tax.
Held: that the right to raise an additional assessment is limited to cases in which the Commissioner of
Income Tax has knowledge which makes it appear to him that the person liable to tax has been assessed at
a less amount than that which ought to have been charged.
Held, further : that the right to require particulars carries with it an obligation to act bona fide and the
Commissioner of Income Tax should if required to do so give the purpose of his inquiry so as to provide
some means by which his bona fides may be tested.
Appeal dismissed.
Case referred to
Flower v London, Brighton & South Coast Ry Co (1865), 2 Drew & Sm 330, 5 New Rep 424, 34 LJ Ch 540,
12 LT 10, 11 Jur NS 406, 13 WR 518, 62 ER 647
Appeal
Appeal by the Commissioner of Income Tax from the judgment of the Supreme Court of British Guiana (Trial
Division Luckhoo J) dated 9 November 1957, whereby it was decided that in the events which have
happened the Commissioner of Income Tax may by notice in writing require S D to furnish him with the
particulars he requested but not without stating for which purposes of the British Guiana Income Tax
Ordinance he requires the said particulars. The facts appear in the judgment of Rennie J.
G A Farnum Solicitor-General (instructed by P M Burch-Smith Ag) for appellant
J H Elliott (instructed by Crown Solicitor J E de freitas) for the respondent
RENNIE J. This appeal deals with the construction to be placed on s 40 (2) of the British Guiana Income
Tax Ordinance, Cap 299.
On 31 October 1955, the respondent was assessed for income tax in respect of income for the year 1954
and in December 1955, he paid the taxes so assessed.

In October 1956, the appellant requested the respondent to furnish him with a complete and detailed
statement of all his properties, investments and other assets. The nature of this request is of some
importance and for that reason I will set it our fully. It is:
Will you please let me have a complete and detailed statement of all properties, investments and
other assets and their respective costs, including cash at bank and in hand, owned by you or your wife
personally or jointly with others and whether in your or your wifes own name or in the name of a
nominee on 31 December 1954.
2. In the case of cash at bank, please state whether at General Post Office Savings or other local
bank. You should state whether the account is in your or your wifes name and give in respect of each
account, the balance at 31 December 1954.
3. In the case of properties, please give in respect of each:
(a) date of purchase;
(b) from whom purchased;
(c) purchase price;
(d) name of agent through whom purchased.

38
4. In case of any assets held in the name of a nominee, kindly give full name and address of
nominee.
5. In case you sold any properties in 1954 kindly state:
(a) sale price;
(b) date of sale;
(c) name of purchaser; and
(d) name of selling agent, and amount of commission paid.
6. If you hold or held any properties, investments and other assets as the nominee of any other
person who holds the beneficial interest therein, kindly give full particulars thereof, with respective
values and the name and address of the person on whose behalf you hold or held them.
7. If you had any liabilities at 31 December 1954, kindly furnish me with a detailed list of creditors
and the amounts owed to them on that date.
The respondent replied to this request by himself asking the purpose of the appellants inquiry. The
appellant then answered the respondents question by directing his attention to s 40 (2) of the British Guiana
Income Tax Ordinance and by pointing out that he may require any person to furnish him within a specified
time any particulars he requires for the purpose of the Ordinance with respect to the ... income, assets and
liabilities of such person and of his wife.
For the purposes of this appeal ss 40 (1) and (2) and 50 are the relevant sections of the British Guiana
Income Tax Ordinance. They are as follows:
40. (1) Every person chargeable with tax shall on or before the prescribed day in every year deliver
to the Commissioner a true and correct return of the whole of his income from every source
whatsoever for the year immediately preceding the year of assessment, and shall if absent from the
Colony give the name and address of an agent residing therein.
(2) The Commissioner may by notice in writing require any person to furnish to him within a
specified time any particulars in writing he requires for the purposes of this Ordinance with respect to
the income, assets and liabilities of such person or of his wife.
50. Where it appears to the Commissioner that any person liable to tax has not been assessed or
has been assessed at a less amount than that which ought to have been charged, the Commissioner
may, within the year of assessment (commencing with the year of assessment 1942) or within five
years after the expiration thereof, assess the person at such amount or additional amount as according
to his judgment ought to have been charged, and the provisions of this Ordinance as to notice of
assessment, appeal, and other proceedings hereunder shall apply to that assessment or additional
assessment and to the tax charged under it.
The respondent having already been assessed for and having paid the income tax the request of the
appellant must of necessity be grounded on s 50 of the British Guiana Ordinance. This section enables the
appellant to raise an additional assessment within five years after the year of assessment where it appears
to him that any person liable to tax has not been assessed or has been assessed at a less amount than that
which ought to have been charged. The right to raise an additional assessment is therefore not at large; it is
limited to the cases where it appears to the appellant that the person liable to tax has been assessed at a
less amount than that which ought to have been charged. Such a limitation means that the appellant must
have some material upon which it can appear to him that the person liable to tax has been assessed at a
less amount than that which ought to have been charged. Until he possesses such material he can have no

right to raise an additional assessment and with no right to raise an additional assessment he can have no
right to make a request for particulars of income.
The second point in this appeal is whether the respondent can require the 39 appellant to state the
purpose of his inquiry. Section 40 (2) of the British Guiana Ordinance enables the appellant to ask for any
particulars he requires for the purposes of the Ordinance. This the appellant contends gives him the right to
say he requires the particulars for the purposes of the British Guiana Ordinance and to decline to give any
further information. This right which the appellant sets up must carry with it the obligation to act bona fide.
And he should if required to do so give the purpose of his inquiry so as to provide some material by which
his bona fides may be tested. This I believe is the principle laid down by Kindersley V-C in Flower v The
London, Brighton and South Coast Railway Co ((1865), 2 Drew & Sm 330, 5 New Rep 424, 34 LJ Ch 540,
12 LT 10, 11 Jur NS 406, 13 WR 518, 62 ER 647.) (34 LJCh at p 543) as follows:
The company are not, by their engineer, to say, You shall not know what we think necessary for
the purposes of the act: it is sufficient that our engineer says, that in his opinion certain things are
necessary; for that amounts to the proposition, that the court shall not have the means of forming a
judgment whether it is bona fide or mala fide required. It is admitted that the court has a right to
determine whether it is bona fide required; and, if it is not so, to enjoin the company from taking; and
yet the argument is, that the court shall not know the details upon which alone it is possible to form a
judgment as to the bona or mala fides of the taking.
It, therefore, seems that not only must the appellant have some material upon which it can appear to
him that the person liable to tax has been assessed at a less amount than that which ought to have been
charged, but he must also, if required so to do, state the purpose of his inquiry so as to provide some
material by which his bona fides may be tested. And on the question of his bona fides the nature of his
request can be of some importance. For it may be that what is asked cannot properly be classified as
particulars. The name of the agent through whom property is purchased may be of use to the appellant in
a search to find out if the agent has accounted for his commission in his income tax return but it can hardly
be said to be particulars with respect to the respondents income.
There remains for consideration the matter of the respondents cross-appeal. This court is asked by the
respondent to construe s 40 (2) so as to restrict its application to cases where (a) no return has been
submitted to the appellant and (b) where a return has been submitted but the appellant is not satisfied that
such return is true and correct and has not proceeded to make an assessment.
The facts in the instant case are that a return was made by the respondent in 1955 and that the
appellant made an assessment thereon.
The functions of the courts as I understand them are to hear and determine cases. It forms no part of
its functions to express opinions on hypothetical facts.
For the foregoing reasons I am of opinion that the appeal should be dismissed with costs.
HALLINAN CJ. I concur.
ARCHER J. I concur.
Appeal dismissed.

40
(1958) 1 WIR 41

Booker Bros And Another v Hutt

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
30 JUNE, 1, 2, 3, 4 JULY, 26 SEPTEMBER 1958

Contract Implied term Frustration Effect of provision that should purchaser within a stated time fail to
complete the purchase the agreement shall become null and void.
H held 2,600 and S held 3,400 of the 6,350 shares issued by the Bel Air Hotel Co, Ltd. In an endeavour to
acquire the hotel as a going concern, on 12 February 1949, H agreed with S to purchase his shares for
$17,000 and to undertake the liabilities of the hotel. These liabilities include a first mortgage debt of
approximately $19,000 and a further debt of approximately $8,500 in respect of supplies due to BBM & Co,

Ltd, and $17,000 due to SS assigned to BBM & Co, Ltd, and the debt of $17,000 owed to him by the Bel Air
Hotel Co, Ltd, and the $17,000 H agreed to pay him for his shares.
H was the owner of the Eldorado Hotel. On 3 January 1949, he agreed to sell that hotel to one Sue-a-Quan
for $120,000. The agreement provided that Sue-a-Quan should pay a deposit of $11,000 on account of the
purchase price and should the purchaser fail to complete the purchase within six months from the date of
the agreement his deposit shall be forfeited to H and the agreement shall become null and void.
The Eldorado was mortgaged to the Demerara Mutual Life Assurance Society, Ltd, to secure sums totalling
$45,000. On 12 February 1949, Sue-a-Quan entered into a supplemental agreement with H whereby he
agreed on the passing of the Transport (conveyance) to pay the Demerara Mutual Life Assurance Society,
Ltd, $45,000 in respect of their mortgages and to pay BBM & Co, Ltd, $64,000 the balance of the purchase
price. On 12 February 1949, H had five properties valued at $198,000 but subject to mortgage debts
amounting to,$89,000. The purchase of the assets of the Bel Air Hotel he said did not depend on the sale of
the Eldorado Hotel as he had other assets.
On 14 July 1949, BBM & Co, Ltd, demanded payment of $64,000 from H
By an agreement dated 19 July 1949, H terminated the agreements of 3 January 1949, and 12 February
1949, with Sue-a-Quan and discharged him from their obligations.
S and BBM: & Co, Ltd, sued H to recover $17,000 the purchase price of the shares and interest. The trial
judge came to the conclusion that there was an implied condition in the agreement sued upon that the
fulfilment of that agreement depended upon the performance of the Sue-a-Quan agreement and that the
action failed.
Held: (i) that the performance of the Sue-a-Quan agreement was not necessary in a business sense to give
efficacy to the contract to purchase the shares and that H was not rendered incapable of performing that
contract or that performance in the changed circumstances would make the contract radically different from
the one entered into by the parties.
(ii) that the clause that should the purchaser fail to complete the purchase within six months the agreement
shall become null and void is one for the benefit of the vendor and makes the agreement void at his choice.
It does not entitle the purchaser to say the agreement is off.
Appeal allowed.
Cases referred to
Re Comptoir Commercial Anversois & Power, Son & Co [1920] 1 KB 868, 89 LJKB 849, 122 LT 567, sub
nom. Comptoir Commercial Anversois v Power, Son & Co, 36 TLR 101, CA, 39 Digest 463, 893

41
Reigate v Union Manufacturing Co (Ramsbottom), Ltd, and Elton Cop Dyeing Co, Ltd [1918] 1 KB 592, 87
LJKB 724, 118 LT 479, CA, 12 Digest (Repl) 389, 3024
Davis Contractors, Ltd v Fareham UDC [1956] 2 All ER 145, [1956] AC 696, 54 LGR 289, 100 Sol Jo 378,
HL, 3rd Digest Supp
New Zealand Shipping Co, Ltd v Societe des Ateliers et Chantiers de France [1919] AC 1, 87 LJKB 746, 118
LT 731, 34 TLR 400, 62 Sol Jo 519, 14 Asp MLC 291, HL, affg [1917] 2 KB 717, CA
Davenport v R (1877), 3 App Cas 115, 47 LJPC 8, 37 LT 727, BC, 37 Digest (Repl) 524, 6480
Malins v Freeman (1837), 2 Keen 25, 6 LJ Ch 133, 1 Jur 19, 48 ER 537, 42 Digest 486, 532
Appeal
Appeal from the judgment of the Supreme Court of British Guiana (Trial Division Phillips J) dated 25
February 1956, dismissing the plaintiffs claim. The facts appear in the judgment of Rennie, J.
Staffored QC Malcolm Butt QC and Elliott (instructed by J de Freitas) for the appellants
PA Cummings and HA Fraser (instructed by H B Fraser) for the respondents
RENNIE J. This appeal relates to the purchase of shares in an hotel company
The appellant Schuler held 3,400 and the respondent held 2,600 of 6,350 shares issued by the Bel Air
Hotel Co, Ltd The respondent was desirous of acquiring the Bel Air Hotel as a going concern and with that

object in view he agreed with the appellant Schuler to purchase his shares from him for 417,000 and to
undertake the liabilities of the company. The liabilities of the company included debts due to the appellant
company to which the appellant Schuler, a former employee of that company, was also indebted.
The respondent was the owner of the Eldorado Hotel. By an agreement of 3 January 1949, the
respondent agreed to sell, and a certain Sue-a-Quan agreed to buy, the Hotel Eldorado with its goodwill,
furniture and stock-in-trade for a total sum of $120,000. The purchase was to take effect as from 3 January
1949, and possession was to be given to the purchaser who was empowered to collect the rents on behalf
of the respondent. A deposit of $6,000 was made by the purchaser, and provision made for a further deposit
of $5,000. Transport of the property was to be completed within six months or as soon as possible. It was
provided that, should the purchaser fail to complete the purchase within six months from the date of the
agreement, his deposit would be forfeited to the vendor and the agreement would become null and void.
A supplemental agreement between the same parties wad made on 12 February 1949. It made
provision for the transfer of the hotel and other licences to the purchaser before payment of the further
deposit of $5,000. It also contained the two following clauses:
5. The Vendor having assigned the benefit of the Principal Agreement to Booker Brothers
McConnell and Company Limited shall be at liberty notwithstanding the said Agreement to advertise
and pass a fifth mortgage to the said Company for the sum of $17,000.
6. On the passing of Transport the Purchaser shall pay to Demerara Mutual Life Assurance Society
Limited the sum of $45,000 in respect of the First, Second, Third and Fourth mortgages on the
property sold, and to Booker Brothers McConnell and Company Limited the balance of the purchase
price namely$64,000.
The third agreement involved in this appeal is also dated 12 February 1949, and was made between
Bel Air Hotel Limited of the first part, the respondent of the second part, the appellant Schuler of the third
part and the appellant 42 Booker Brothers McConnell and Company Limited of the fourth part. In the first
recital it is stated that the Bel Air Hotel Company is indebted to the appellant company in the sum of
approximately $19,000 under a First Mortgage and in the sum of approximately $8,500 in respect of supplies
and is also indebted to the appellant Schuler in the sum of $17,000. The second recital stated that the
appellant Schuler who has the controlling interest in the Hotel Company has agreed to sell his shares in that
company to the respondent for the sum of $17,000. The third recital stated that the respondent has agreed
to sell the Hotel Eldorado with its goodwill, furniture and stock-in-trade, for the sum of $120,000 and has
delivered possession of the same to Sue-a-Quan under an agreement dated 3 January 1949. It also stated
that $11,000 has been already or will shortly be received by the respondent and $45,000 is to be paid to the
Demerara Mutual Life Assurance Society Limited, in satisfaction of the first, second, third and fourth
mortgages on the said property leaving a balance of $64,000 to be paid to the respondent on the passing of
transport. The fourth recital stated that the appellant Schuler has assigned to the appellant company the
sum of $17,000 owing to him by the Bel Air Hotel Company and the sum of $17,000 owing to him by the
respondent in respect of the sale of the said shares. And the fifth and last recital stated that the Hotel
Company has agreed to pass a first and second mortgage on its property to the appellant company as
security for the payment of the said sum of $17,000 with interest at the rate of 5 per cent. per annum from
the date of the agreement within six months from 3 January 1949, or the passing of the mortgage and that
the respondent has agreed to pass a fifth mortgage on the said property to the appellant company as
security for the payment of the said sum of $17,000 with interest at the rate of 5 per cent. per annum from
the date of the agreement within six months from 3 January 1949, or the passing of the mortgage as the
case may be.
Passing to the operative portion of the agreement I shall quote it but before doing so must identify the
parties. The Purchaser mentioned in the agreement is the respondent, the Creditor Company is the
appellant company, the Debtor Company is Bel Air Hotel Company Limited and the Vendor is the
appellant Schuler. With that explanation I now quote the operative portion of the agreement as follows:
NOW IT IS HEREBY AGREED as follows:
1. The Purchaser shall forthwith deposit with the Creditor Company the Grosse Transport No 523 of
23rd April 1946, for the said property and hereby assigns to the Creditor Company the said balance of
$64,000 payable to him under the said Agreement dated 3rd January 1949, and the full benefit and
advantage thereof.
2. The Debtor Company and the Purchaser shall forthwith advertise the aforesaid mortgages to the
Creditor Company, and shall pass the same whenever requested by the Creditor Company.
3. On payment of the said sums of $17,000 with interest as aforesaid or on the passing of the said
mortgages, whichever shall first happen, the transfer of the said shares which has been signed by the
Vendor, shall be handed to the Purchaser.

4. On receipt of the said balance payable under the said Agreement dated 3rd January 1949, the
Creditor Company shall apply the same to the payment of
(a) the capital and interest of the said First Mortgage of $19,000;
(b) the said sum of $8,500 in respect of supplies; and,
(c) the said sum of $17,000 with interest as aforesaid.
5. All costs and expenses of and incidental to this Agreement shall be paid by the Debtor Company.

43
As Witness the hands of the parties the day and year first above written in the presence of the
subscribing witness.
The action that has given rise to this appeal was brought by the appellants to recover the purchase
price of the 3,400 shares and interest.
To meet that claim the respondent alleged that the agreement of 12 February 1949, did not represent
the true intentions of the parties in that the agreement provided for the payment of two sums of $17,000
whereas it was the parties intention that only one such sum should be paid by him. He also contended that
there was an implied condition in the agreement that the fulfilment of the terms and undertakings of the
agreement depended specifically upon the performance of the terms and undertakings contained in the Suea-Quan agreement and that his performance of the agreement was frustrated by the nonperformance by
Sue-a-Quan of the Sue-a-Quan agreement which became of no effect and no longer binding on the parties.
The respondents allegation that the agreement did not represent the true intention of the parties was
rejected by the learned trial judge. In the course of his judgment he said:
I do not accept that part of Hutts evidence where he swore he never read the agreement in
question and that only parts of it were read out by Mr J Edward de Freitas. I find that he did read the
agreement and did sign and agree to what appears written in the agreement. It may well be that he
discovered later (on his own or on advice) on his return to the Colony that the other sum of $17,000
described as Schulers vendor debt was a secret profit (undisclosed to the shareholders) made by
Schuler as promoter on the formation of the company and then sought to repudiate it.
In spite of that finding counsel for the respondent asked this court to say that the agreement does not
represent the true intentions of the parties. He invited this court to reject the findings of fact of the learned
trial judge in that connection.
A perusal of the evidence shows that the witness Leon Schuler said:
On the morning of 12 February Hutt and I were present at Mr de Freitas office. We were each
given a copy of the agreement and Mr W S Jones (three of us).... I saw the others reading their copy
of the agreement. We thereupon signed the agreement.
Hutt himself said in evidence:
The agreement was read by me at Mr de Freitas office and I signed it I do not sign what I do not
intend to sign.
There was in my view ample evidence on which the learned trial judge could have found the facts in this
connection as he did and since no good reason has been shown to this court to cause it to disturb that
finding it should stand.
The second limb of the defence found favour with the learned trial judge who expressed himself in these
words:
Whereas the defendant from the outset (five years earlier) in his affidavit of defence sworn to on
the 13th May 1950, alleged and indeed I do find established that the fulfilment of the Sue-a-Quan
agreement was a basic condition of the agreement of the 12th February 1949, in question (see
paragraphs 12 to 15 inclusive of the Defence) I am convinced that there would have been no
agreement if Hutt did not express his desire to acquire Bel Air Hotel Limited and had not unequivocally
evinced to all concerned how he was going to pay for itnamely from the moneys derived from the sale
of his Eldorado Hotel. I have come to the conclusion that there was an implied condition in the
agreement in 44 question that the fulfilment of the agreement in question depended upon the
performance of the Sue-a-Quan agreement as alleged in paragraph 14 of the Defence and it was not
the intention of the parties to carry out the agreement if the Sue-a-Quan agreement fell through.
It is against this decision of the learned trial judge that the full force of the appeal was directed. This
court was asked to say that the learned trial judge was wrong in implying a condition into the agreement and

in coming to the conclusion that the fulfilment of the agreement depended upon performance of the Sue-aQuan agreement.
I approach this matter by pointing out that it was decided in Comptoir Commercial Anversois & Power,
Son & Co (Re Comptoir Commercial Anversois & Power, Son & Co [1920] 1 KB 868, 89 LJKB 849, 122 LT
567, sub nom. Comptoir Commercial Anversois v Power, Son & Co, 36 TLR 101, CA, 39 Digest 463, 893)
that the question whether a term should be implied in contracts providing for their dissolution on the ground
of frustration of the commercial adventure was a question of law for the court. That being so this court is in
no way fettered by the conclusion of the learned trial judge that there was an implied condition in the
agreement.
What then is the law on this subject?
In Reigate v Union Manufacturing Co (Ramsbottom), Ltd, and Elton Cop Dyeing Co, Ltd ([1918] 1 KB
592, 87 LJKB 724, 118 LT 479, CA, 12 Digest (Repl) 389, 3024.) ([1918] 1 KB at p 605), Scrutton LJ, said:
The principles however have been clearly established : The first thing is to see what the parties
have expressed in the contract; and then an implied term is not to be added because the court thinks it
would have been reasonable to have inserted it in the contract. A term can only be implied if it is
necessary in the business sense to give efficacy to the contract; that is, if it is such a term that it can
confidently be said that if at the time the contract was being negotiated someone had said to the
parties what will happen in such a case they would both have replied of course so and so will
happen; we did not trouble to say that it is so clear. Unless the court comes to some conclusion as that
it ought not to imply a term which the parties themselves have not expressed.
Applying those principles to the instant case it does not seem to me that the performance of the Sue-aQuan agreement was necessary in a business sense to give efficacy to the contract. All that was required of
the respondent to complete the purchase of the Bel Air Hotel shares was the payment of $17,000. It might
have been more convenient for him to make that payment if the Sue-a-Quan agreement had been
performed but can it be said that the performance of that agreement was necessary in a business sense to
give efficacy to the agreement to purchase the shares? The evidence shows that the respondent had other
means from which he could have paid the $17,000; It was therefore not necessary in any sense, business or
otherwise, that the Sue-a-Quan agreement should be performed so as to give efficacy to the agreement to
purchase the shares.
On the question of frustration Lord Radcliffe in Davis Contractors, Ltd v Fareham UDC [1956] 2 All ER
145, [1956] AC 696, 54 LGR 289, 100 Sol Jo 378, HL, 3rd Digest Supp.) ([1956] 2 All ER at p 160) said:
So perhaps it would be simpler to say at the outset that frustration occurs wherever the law
recognises that, without default of either party, a contractual obligation has become incapable of being
performed because the circumstances in which performance is called for would render it a thing
radically different from that which was undertaken by the contract.
It was nowhere shown that the respondent was rendered incapable of performing the contract to purchase
the shares or that performance in the changed circumstances would make the contract radically different
from the one entered into by the parties. Any such suggestion was rejected by the respondent when he was
in the witness box. In his evidence he said:
My purchase of the assets of the Hotel did not depend on the sale of the Eldorado Hotel as I had
other assets.

45
And when re-examined he stated that on 12 February 1949, he had five properties and went on to give their
value which amounted to $198,000 but subject to mortgage debts amounting to $89,500.
These reasons are sufficient to determine this appeal but if it could be shown that a condition should be
implied then there still remains the question of the termination of the Sue-a-Quan agreement. That
agreement was terminated by another agreement of 19 July 1949. The first sentence of the latter
agreement is as follows:
It is hereby agreed between Mr JJ Hutt and Mr James A Sue-a-Quan that their written agreements
of 3 January 1949, and 12 February 1949, shall be wholly terminated and discharged on the following
terms:
Then follow the terms.
If the performance of the agreement between the parties to this appeal depended upon the performance
of the Sue-a-Quan agreement then the respondent was under an obligation to the appellants to see that

Sue-a-Quan performed his contract. Any act on the part of the respondent that relieved Sue-a-Quan of his
obligation would amount to a breach of the respondents contract with the appellants. And such an act
would be the entering into the agreement with Sue-a-Quan that terminated the agreements of 3 January
1949, and 12 February 1949.
In stating what I have just stated I have not oversighted clause 10 of the Sue-a-Quan agreement. That
clause is as follows:
10. Should the purchaser fail to complete the purchase within six months from the date hereof his
deposit shall be forfeited to the Vendor and this agreement shall become null and void.
Such a clause is for the benefit of the vendor and makes the contract void at his choice. It does not give the
purchaser the right to say the contract is void. This principle of construction is clearly set out by Lord Finlay,
LC, in New Zealand Shipping Co, Ltd v Societe des Ateliers et Chantiers de France ([1919] AC 1, 87 LJKB
746, 118 LT 731, 34 TLR 400, 62 Sol Jo 519, 14 Asp MLC 291, HL, affg [1917] 2 KB 717, CA) ([1919] AC at
pp 6 and 7). He said:
It is a principle of law that no one can in such case take advantage of the existence of a state of
things which he himself produced. This is illustrated by the case of Roberts v Wyatt. There the plaintiff
had purchased an estate, and it was provided in the contract that the vendors should make out a good
title, and on or before 21 December 1808, on receiving from the plaintiff the purchase money, execute
a legal conveyance of the fee-simple. There was a proviso that in case the vendors could not deduce
a good and marketable title, such as the purchaser or his counsel should approve, or if the purchaser
should not pay the purchase money on the appointed day, the agreement should be utterly void. An
abstract was sent to the plaintiff by the defendant, who was the vendors solicitor. The abstract was
sent back to the defendant for the purpose of having the title cleared up. The defendant said that the
objections to the title could not be met and refused to return the abstract asserting that the contract
was void under the proviso. Sir James Mansfield, Chief Justice, in the course of his judgment said:
Something has been argued on the construction of the proviso that in case the vendor could not make
a title the contract should be void. But in order to adapt that defence to the present case the argument
must be that if the defendant says he cannot answer the objections, it shall be absolutely void at the
choice of either party. But that is not so; the meaning is that if the seller cannot make a good title by
the time mentioned, the contract shall be void as against him, and the plaintiff has the right to be off his
bargain. So, e contra, if the plaintiff does not pay the money, the defendant may avoid the contract;
but the plaintiff cannot say I am not ready with my money, therefore I will

46
avoid the contract; nor can the seller say, my title is not good therefore I shall be off.
This principle goes back to Coke Upon Littleton and is so strong that in some cases it has modified the
language of statutes even when public interests are affected. Thus where the statute provided that if the
purchaser at an auction refused to pay the auction duty, his bidding should be null and void to all intents and
purposes it was decided that the bidding was void at the option of the seller, though the object of the Act
was to protect the revenue. This was said by Sir Montague ESmith in Davenport v R ((1877), 3 App Cas
115, 47 LJPC 8, 37 LT 727, BC, 37 Digest (Repl) 524, 6480.) (3 App Cas at p 129) when dealing with the
case of Malins v Freeman ((1837), 2 Keen 25, 6 LJ Ch 133, 1 Jur 19, 48 ER 537, 42 Digest 486, 532.).
It seems clear to me that the appellants should succeed in this appeal and that the damages should be
assessed at $17,000, the contract price of the shares. The shares had no value at the time when the
respondent refused to complete the contract and consequently there is nothing to deduct from the contract
price of the shares. At the time of the respondents refusal to complete the contract the company was
insolvent, unable to pay its unsecured creditors and with no prospect to the shareholders.
There is a claim for interest but I am unable to find any evidence to support such a claim; the agreement
for the sale of the shares contains no provision for the payment of interest. Apart from agreement, interest
may be payable by virtue of the provisions of a statute but no such statute has been brought to the attention
of this court.
The appeal will therefore be allowed with costs and the judgment of the court below will be set aside
and judgment will be entered for the appellants for $17,000 and for the costs of the trial.
ARCHER J. I agree.
HALLINAN CJ. I have seen the judgment of Rennie J, in this appeal. I agree that this appeal must be
allowed and that the appellants should be awarded damages assessed at $17,000.
I do so with reluctance for I feel that Mr Hutt, who in 1949 was an old man of seventy-five, went into the
complex deal with which this case is concerned without independent legal advice. He was attempting to buy

the controlling interest in a hotel that was heavily encumbered and probably insolvent. I find it difficult to
believe that it was solvent in February and insolvent when Mr Hutt wrote to Mr Jones, the Managing Director
of Bookers, on 30 July 1949. Paragraph 2 of the appellants pleading in Reply is singularly disingenuous. It
seeks to represent the writing of 12 February between themselves, Hutt and the Bel Air Hotel, as merely
containing the terms on which the appellant Schuler sold 3,400 shares to Hutt and the terms on which
security was to be given to the appellant, Bookers, for the facilities which they were providing to enable the
various deals made between Schuler and Hutt to be carried through. As I see this complex deal: Hutt
wished to have a controlling interest in the hotel by the purchase of Schulers shares. Bookers held a first
mortgage for $19,000 on the hotel which also owed that firm $8,500; Schuler owed Bookers $10,000 and the
hotel owed Schuler an unsecured debt of $17,000. The appellants, Bookers and Schuler, would be unwilling
to let the controlling shares pass to Hutt, unless he took over the liabilities of the hotel. This was not just a
deal between Schuler and Hutt; it was, as Mr Jones put it, a grand opportunity of getting money for Bookers
in the debt from the hotel and the debt from Schuler. The whole debt was to be paid for by $64,000 coming
from the Sue-a-Quan agreement of 3 January 1949. Old Mr Hutt was brought into this deal without
independent legal advice. Mr. De Freitas acted for all the parties and, I think, the view of the learned trial
judge that this was unfair to Mr Hutt is justified. Mr De Freitas throughout the transaction appears 47 solely
concerned with safeguarding Bookers interest. No doubt the writing of 12 February was somewhat
hurriedly prepared. It is certainly a somewhat confusing document, especially when in the last recital an
identical expression- the said sum of $17,000 refers to two quite different sums, the price of the 3,400
shares and the hotels debt to Schuler.
One cannot but view with distaste the spectacle of Mr De Freitas giving evidence for Bookers as well as
acting as solicitor in this case for them, and of an old man of eighty-one being compelled by the appellants
to appear and be cross-examined about a deal which I do not think he ever properly understood. Mr Hutt is
dead and the appellants have won. Their success, I think, will not be a source of much satisfaction to
anyone except themselves.
In this appeal three main defences to the claim for breach of contract were argued: Mistake; failure by
the appellants to procure the performance of a promise in the contract, namely, the giving of a mortgage by
the hotel to Bookers; and, finally, frustration.
Mistake was alleged in two matters: First, that Hutt only undertook to pay the $17,000 for the shares
and not to pay the hotels debt of $17,000 to Schuler. The trial judge held that Hutt fully understood the
writing of 12 February and there was no mistake on this point. As trial judge I should have had some
hesitation in reaching this conclusion but here on appeal I do not think this finding of the trial judge should be
disturbed. Hutt also stated in his letter to Mr Jones of 30 July 1949, that, as he understood the deal, he was
taking over the assets of the hotel for $70,000. If as the trial judge found, that Hutt undertook to pay two
sums of $17,000, is correct, then Mr Hutts notion that his commitments were only $70,000 is clearly a
unilateral mistake not produced by fraud or misrepresentation and therefore not a defence in this action.
As regards the promise by the hotel to give a mortgage to Bookers for their debt to Schuler, which was
assigned to Bookers, this is contained in clause 3 of the writing of 12 February Schulers 3,400 shares are to
be delivered to Hutt when either he pays $17,000 or when the hotel gives the mortgage to Bookers and Hutt
gives to Bookers a mortgage on the Eldorado. It is not I think a good defence for Hutt to say: The hotel (in
which Schuler has the majority shares) must first give Bookers a mortgage before I can be expected to
mortgage the Eldorado or before I can be sued for the price of the shares. The mortgage to be given by the
hotel was not a consideration moving from the appellants to Hutton the contrary, it was to be an
encumbrance on the hotel whose assets Hutt wished to acquire. This was not a condition precedent to the
performance by Hutt of his side of the contract. It was Hutts duty to perform his promise, namely, either to
pay $17,000, or to give a mortgage of the Eldorado Hotel. This was a condition precedent to his right to
have delivery of the shares. He has never attempted or even offered to do this. On the contrary, in his
defence he pleaded that he was absolved from all liability under the contract through frustration.
Lastly, there is the defence of frustration. The trial judge dismissed the claim for damages for breach of
the contract to sell this 3,400 shares and ordered the recision of the writing of 12 February on the ground
that the performance of the Sue-a-Quan agreement was a basic condition of the principal writing and that
there was an implied condition in the principal writing that its continuance depended on the performance of
the Sue-a-Quan agreement; in other words, the trial judge held that the defence of frustration had been
established. I think it would greatly help the courts in the application of the doctrine of frustration if reference
to an implied term were avoided and the objective test advocated by Lord Radcliffe in Davis Contractors v
Fareham UDC ([1956] 2 All ER 145, [1956] AC 696, 54 LGR 289, 100 Sol Jo 378, HL, 3rd Digest Supp.)
([1956] 2 All ER at p 160) were adopted, namely:
whether without default by the party a contractual obligation has become 48 incapable of being
performed because the circumstances in which performance is called for would render it a thing
radically different from that which was undertaken by the contract.

I agree with Rennie J, that this defence must fail. The agreement between the parties obviously
contemplated the acquisition of the hotel by Hutt and the discharge of the liabilities to the appellants by the
$64,000 to come from Sue-a-Quan. But for the expectation from Sue-a-Quan, no doubt this deal might
never have been made. At the same time the additional security of the mortgages clearly showed that
provision was being made for the efficacy of the agreement should the agreement with Sue-a-Quan be
broken. When it was broken or discharged the agreement evidenced by the writing of 12 February did not
become in Lord Radcliffes words- a thing radically different from that which was undertaken. I am unable
to accept the submission for the respondent that the mortgages were merely transitional arrangements to
protect the appellants until Sue-a-Quan paid, but were not intended to continue if Sue-a-Quan defaulted.
Moreover, the defence of frustration was not put forward until May 1950, and the evidence of Mr Hutt does
not support his contention that he regarded the performance of the Sue-a-Quan Agreement as a basic
condition.
I also agree that the defence of frustration fails for another reason. The legal effect of clause 10 of
Hutts agreement with Sue-a-Quan of 3 January 1949, did not permit Sue-a-Quan to take advantage of his
own default by treating the Agreement as void. On the other hand, Hutt had the right to elect whether to
treat it as void or to enforce his rights thereunder (New Zealand Shipping Co, Ltd v Societe des Ateliers et
Chantiers de France ([1919] AC 1, 87 LJKB 746, 118 LT 731, 34 TLR 400, 62 Sol Jo 519, 14 Asp MLC 291,
HL, affg [1917] 2 KB 717, CA). Hutt, by his own act, that is to say, by discharging Sue-a-Quan from his
obligations on 19 July 1949, disabled himself from enforcing the Sue-a-Quan Agreement and therefore
cannot now plead the non-performance of that Agreement as frustrating the Agreement between himself, the
appellants and the Bel Air Hotel.
Appeal allowed.

(1958) 1 WIR 49

Callwood v Callwood
FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
21, 22 JULY 1958

Will Joint under Danish law Survivors right of election Effect of such election Expert evidence of
Danish law.
The husband of EEC, who married her without a marriage settlement, inherited Great Thatch Island in the
British Virgin Islands from his father in 1902. He was at all material times domiciled in St Thomas. He and
his wife made a joint will in St Thomas on 25 April 1911. At that time, St Thomas was a Danish colony, and
remained so until 1917 when it was acquired by the United States of America, but Danish law continued to
be in force there until 1921. The form and contents of the will suggest that he and his wife regarded
themselves as holding property according to Danish law. EECs husband died on 17 January 1917. After
his death EEC exercised her right of election, and retained the joint estate to the exclusion of her children.
EEC has not remarried.

49
In 1948 CWLC went into possession of Great Thatch Island, probably, pursuant to a lease that proved
abortive. He has remained in possession, and an action was brought by EEC, in which she claimed
possession of the Island and damages.
Expert evidence of Danish law in force in St Thomas, prior to 1921, was given by an American lawyer who
practised in St Thomas.
Held: that according to Danish law in force in St Thomas, prior to 1921, husband and wife held property in
community, unless otherwise provided by a marriage settlementand that under the joint will, the whole joint
estate was on the death of the husband to be retained by the wife at her election, undivided with the children
of the marriage, so long as she remained unmarried.

Held, further: that Danish law in force in St Thomas, between 1917 and 1921, was part of the domestic law
of the United States of America in that territory, and that an American lawyer, who practised in St Thomas,
was qualified to give expert evidence of that law.
Appeal dismissed.
Editorial Note. This case is on appeal to the Judicial Committee of the Privy Council.
No cases referred to
Appeal
Appeal by the defendant from the judgment of the Supreme Court of the Windward and Leeward Islands
(Trial Division Lewis J) given on 24 July 1957, at Tortola in the British Virgin Island for the plaintiff for the
recovery of possession of Great Thatch Island and for $2,880 for the use and occupation of that Island. The
facts appear in the judgment.
EE Harney and HL Harney for the appellant
Christian QC and C Harney for the respondent
HALLINAN CJ. The husband of the plaintiff-respondent inherited Great Thatch Island in the British Virgin
Islands from his father in 1902. He had lived and worked in St Thomas since he was a boy of fifteen years
and was at all material times domiciled there. He married the respondent in 1905 and died on 17 January
1917. He and his wife made a joint will in St Thomas on 25 April 1911. At that time St Thomas was Danish
and it was quite clear from the form and contents of this will that Mr and Mrs Callwood regarded themselves
as holding the property according to Danish law whereby husband and wife held their property in community
unless otherwise provided by marriage settlement. Under the joint will the whole joint estate was in the
event of his death to be retained by the respondent at her election undivided with the children as long as she
did not remarry and on certain other circumstances. The respondent exercised her right and retained the
joint estate undivided.
In 1948 the defendant-appellant went into possession of Great Thatch Island probably pursuant to a
lease of this Island to him by the agent of his mother, the respondent, and he has remained in possession
since then. This lease was invalid since it was not under seal and not registered.
The respondent instituted this suit claiming possession and damages for use and occupation. The
appellant contends that the joint will was ineffective so far as relates to real property in the British Virgin
Islands and claimed to be in possession of Great Thatch Island on an intestacy as his fathers heir.
At the trial, Mr Bough, an American lawyer, gave evidence by affidavit. He has practised in St Thomas
and is familiar with Danish law which was then in force in St Thomas until 1921. He referred to a judgment
in the United States Court of Appeal for the Third Circuit given on 25 April 1951, in which the interest of the
respondent under the joint will was fully considered and discussed in relation to the Danish law in force prior
to 1921 and which was part of the domestic law of the United States in that territory when it was 50 acquired
from Denmark in 1917. Mr Bough stated that the judgment of 1951 is a correct statement of the law on this
question. The judgment summarised the position of the surviving spouse under this joint will thus:
It appears that under the Danish law a surviving spouse who thus retained possession of the
community property was entitled to sell or mortgage it or otherwise to deal with and dispose of it as
absolute owner, although perhaps under a duty to compensate their children as heirs for any undue
diminution in the aggregate value of their inheritance.
The trial judge accepted this statement as defining the rights of the respondent in the joint estate; and
he found that the joint will satisfies in form the provisions of the Wills Act, 1837.
Our law relating to a foreign will of land situated in British territory is stated in Jarman On Wills, 8th Edn,
vol 1, p 1, thus:
Thus, a will made in Holland and written in Dutch must, in order to operate on lands in England,
contain expressions which, being translated into our language, would comprise and destine the lands
in question, and must be executed and attested in precisely the same manner as if the will were made
in England.
At note (c) on the same page, it is said:

To arrive at the intention of such a will, the technical terms of foreign law will be read in the sense
which that law gives them, and will operate accordingly so far as the lex loci permits.
The finding of the learned trial judge that the joint will conforms with the Wills Act, 1837, has not been
challenged on appeal. Our attention has not been directed to any matter that would make the disposition
invalid by the law of the British Virgin Islands.
I am unable to accept the submission made on behalf of the appellant that Mr Bough was not qualified
to give evidence on the Danish law applicable to this case, or that this law was not sufficiently established by
the evidence. The joint will itself clearly showed that the respondents husband regarded himself as subject
to Danish law and, therefore, that his property would upon marriage be held jointly by his wife and himself,
and he proceeded to dispose of this joint estate in terms of Danish law. The implications of such disposition
according to Danish law are explained in the judgment of 1951. I consider that the trial judge had sufficient
evidence before him to hold that the joint will comprised and destined the lands in question.
In my view the respondent has had the right to the possession of the Great Thatch Island since the
death of her husband. She is, therefore, entitled to damages for its use and occupation by the appellant
during the last ten years. I think the damages awarded by the trial judge are not supported by evidence.
The rent mentioned in the invalid lease was $50 US per annum, that is $84 BWI, and since the Leeward
Islands Limitation Act (Cap 18 of the Leeward Islands Statutes) permits arrears of rent to be collected for a
period of twelve years, I would award the respondent $84 per annum for ten years, that is $840 BWI.
I would, therefore, dismiss this appeal except in so far as it relates to the quantum of damages which I
would vary by reducing them to $840. The order as to costs in the court below is to stand. There will be no
order as to costs of this appeal.
RENNIE J. I concur.
ARCHER J. I concur.
Appeal dismissed.
Solicitors: E E Harney (for the appellant), Christian (for the respondent).

51
(1958) 1 WIR 52

Standard Furnishing Co Ltd v Trustee In Bankruptcy

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
28, 29, 30, 31 JULY 1958

Bankruptcy Effect on chattels obtained on a hire purchase agreement Debtor hirer in arrears Chattels
transferred to the wife of the debtor Motive for transfer of possession irrelevant Sections 105, 112 and
116 of the Bankruptcy Law of Jamaica, Cap 32.
A McC took furniture from SF Co, Ltd, under a hire purchase agreement, which provides that the option to
purchases is only exercisable if the hirer is not indebted to SF Co, Ltd, in respect of the matters mentioned
in all or any clause of the agreement. He fell in arrears in his payments, and five days before calling a
meeting of his creditors he asked the company to transfer the hire purchase agreement to his wife. On 17
August 1956, the company cancelled his agreement and entered into a hire purchase agreement with his
wife. Three weeks afterwards a petition in bankruptcy was filed against him, and a provisional order in
bankruptcy was made on the petition. The trustee in bankruptcy took possession of the furniture which was
still in the debtors matrimonial home. SF Co, Ltd, took out a summons to establish their interest in the
furniture.
Held: (i) the transaction of 17 August 1956, was not bogusa common law fraudfor a mere transfer of
possession in order that goods should cease to be the debtors reputed property is in itself lawful and the
motive of the debtor for so doing is irrelevant.
(ii) that where the situation of the goods is consistent with their being in the possession of either the husband
or the wife, the law attributes the possession to whichever spouse has the legal title.

(iii) that A McC had no property in the furniture and consequently there could be no transfer of property that
was void either under s 112 of the Jamaica Bankruptcy Law on the ground of being voluntary or under s 116
as being a fraudulent preference.
Appeal allowed.
Cases referred to
Ramsay v Margrett [1894] 2 QB 18, 63 LJQB 18, 63 LJQB 513, 70 LT 788, 10 TLR 355, 1 Mans 184, 9 R
407, CA, 7 Digest 11, 44
Re Mathieson [1927] 1 Ch 283, 71 Sol Jo 18, sub nom. Re Mathieson, Moore (Trustee) v Mathieson, 96 LJ
Ch 104, [1927] B & CR 30, sub nom. Re Mathieson, Ex p Trustee, 136 LT 528, CA, Digest Supp
Appeal
Appeal by the applicant from an order of Macgregor CJ, given at the Supreme Court Kingston, Jamaica, and
dated 10 March 1958
On 14 March 1952, furniture was supplied by SF Co, Ltd, to A McC under a hire purchase agreement, to
the value of 215 11s. Payments were made, new items added and periodically the account between the
parties was capitalised and a new hire purchase agreement entered into. On 15 March 1955, a hire
purchase agreement was entered into in respect of items of furniture stated to be of the value of 289 8s
11d. The agreement provided for payments of 8 per month. On 15 August 1956, the account stood at
210 8s 11d. On that day A McC wrote to the SF Co, Ltd, asking them to transfer the hire purchase
agreement to his wife. On 17 August 1956, SF Co, Ltd, cancelled the agreement with A McC and on that
same day took a hire purchase agreement from his wife for the same items of furniture valued at 210 8s
11d. On 15 August 1956, A McC was in arrears in his payments to the extent of 57. Clause 9 of his
agreement provided that the option to purchase is only exercisable

52
if the hirer is not indebted to SF Co, Ltd, in any sum in respect of the matters mentioned in all or any
clause of the agreement.
On 20 August 1956, A McC called a meeting of his creditors. On 6 September 1956, a bankruptcy
petition was filed in the court, and on 22 September 1956, a provisional order was made on the petition. On
that day, the agent of the trustee in bankruptcy went to the debtors matrimonial home and took possession
of the items of furniture covered by the hire purchase agreement. An objection was raised to the action on
the part of the agent of the trustee in bankruptcy. Thereafter SF Co, Ltd, took out a summons under s 103 of
the Jamaica Bankruptcy Law to establish their interest in the furniture.
The relevant sections of the Bankruptcy Law are:
(103).The debtor, or any of the creditors, or any other person, if aggrieved by any act or decision
or estimate of the trustee, may apply to the court, and the court may confirm, reverse or vary, the act
complained of, and may make such order in the matter as it thinks just, and may direct any question of
fact or assessment of value or damage to be tried by a jury.
(112).(1) Any settlement of property not being a settlement made before and in consideration of
marriage, or made in favour of a purchaser or incumbrancer in good faith and for valuable
consideration, or a settlement made on or for the wife or children of the settlor of property which has
accrued to the settlor after marriage, in right of his wife, shall, if a provisional order in bankruptcy, or an
absolute order in bankruptcy in cases where no provisional order is made, take effect against the
settlor within two years after the date of the settlement, be void against the trustee, and shall, if the
settlor becomes bankrupt at any subsequent time within ten years after the date of the settlement, be
void against the trustee unless the parties claiming under the settlement can prove that the settlor was
at the time of making the settlement able to pay all his debts without the aid of the property comprised
in the settlement, and that the interest of the settlor in such property had passed to the trustee of such
settlement on the execution thereof.
(2) Any covenant or contract made by any person in consideration of marriage, for the future
settlement upon his wife or children of any money or property wherein he had not at the date of his
marriage any estate or interest, whether vested or contingent, in possession or remainder and not
being money or property of or in right of his wife, shall, if a provisional order, or an absolute order in
bankruptcy in cases where no provisional order is made, take effect against him before such money or
property has been actually transferred or paid pursuant to such contract or covenant, be void against
the trustee.
(3) Settlement shall for the purposes of this section include any conveyance, gift or transfer of
property.
(116).(1) Every conveyance or transfer of property, or charge thereon, every payment, every
obligation, and every judicial proceeding, made, incurred, taken or suffered, by any person unable to

pay his debts as they become due from his own moneys, in favour of any creditor or any person in
trust for any creditor, with a view of giving such creditor a preference over the other creditors, shall, if a
provisional order take effect against the person making, taking, paying or suffering the same within six
months after the date of making, taking, paying or suffering the same, be deemed fraudulent and void
as against the trustee.

Coore (instructed by Samuel & Samuel) for the appellants

Leacroft Robinson (instructed by Donald Hendry) for the respondents

53
HALLINAN CJ. Aubrey McCaw, the debtor in these bankruptcy proceedings, had since 1952 been hiring
furniture from the appellant under hire purchase agreements. Payments were made, new items added and
periodically the account between the parties was capitalised and a new agreement made. On 15 March
1955, an agreement was made specifying nine items of furniture and the value was stated at 289 8s 11d. I
agree with the submission made for the respondent that this statement of value may represent the total sum
due rather than the actual value of the goods. McCaw became aware that he was insolvent some time early
in 1956, and later in the year Edward Hanna, a director of the appellant company, suggested he might call a
meeting of his creditors. On 15 August 1956, McCaws solicitor called a meeting of creditors which took
place on 20 August 1956. A bankruptcy petition was filed by R Hanna & Sons, Ltd (who have the controlling
interest in the appellant company), on 6 September 1956, and a provisional order in bankruptcy was made
on 22 September 1956. On the same day the respondent seized the goods, the subject-matter of the
agreement of 15 March 1955.
Meanwhile, on 15 August 1956, the debtor had written asking the appellant to transfer this hire
purchase agreement to his wife. On 17 August the appellants marked the agreement of 15 March 1955,
cancelled and made a new hire purchase agreement with Mrs Aubrey McCaw in which the same goods
were valued at 210 8s. 11d. The debtors account kept by the appellant and exhibited from 1952 ends
thus:
Aug 17 Account transferred to Hazel McCaw with
balance of 210 8s 11d.
To Balance 210 8s 11d.
The difference between 210 and the 289 of the former agreement represents payments made by the
debtor amounting to some 79 made between March 1955, and August 1956this would represent
payments averaging over 4 per month for seventeen months. There is evidence on affidavit that the
amount of 3 payable monthly mentioned in the agreement of 15 March 1955, was a mistake, and should
have been 8 and that the reason for the new agreement was to correct this mistake. While I do not accept
that this was the motive for the new agreement with Mrs McCaw, I think the uncontradicted statement on
affidavit concerning this mistake itself (especially in view of the amount actually paid during the seventeen
months) should be accepted.
The appellants sought by summons in these proceedings to have it declared that the trustee had no title
to the goods seized from the debtors house and to have them restored to Mrs McCaw. It is conceded by
the appellants that if the debtor had been in possession of the furniture under the agreement of 15 March
1955, then these goods would have vested in the trustee by virtue of s 105 of the Jamaica Bankruptcy Law
(Cap 32) since, at the commencement of the bankruptcy, the goods would have been in the possession of
the debtor by the permission of the true owner and the debtor would have been the reputed owner. The
learned Chief Justice correctly directed himself on the authority of Ramsay v Margret ([1894] 2 QB 18, 63
LJQB 18, 63 LJQB 513, 70 LT 788, 10 TLR 355, 1 Mans 184, 9 R 407, CA, 7 Digest 11, 44.), that where the
situation of the goods is consistent with their being in the possession of either the husband or the wife, the
law attributes the possession to whichever spouse has the legal title. The learned Chief Justice, however,
after examining the evidence, concluded that despite the purported cancellation of the agreement of 15
March 1955, and the making of the agreement of 17 August 1956, the possession of the goods never left the
debtor; he appears to have considered that the transaction of 17 August 1956, was bogus a common law
fraud. The main grounds for this finding are, I think, the evidence as to fraudulent motives and that the
appellants were still looking to the debtor to pay the balance of 210. The evidence before the trial judge
was

54
on affidavit so that here on appeal it cannot be said that he had the advantage of seeing and hearing
the witnesses. There was, I think, sufficient evidence on which to find that the motive for the transaction of
17 August 1956, was to benefit both the appellants and the McCaws by saving the furniture from seizure by
the trustee under s 105. But it does not, therefore, follow that the transaction was bogus and that the debtor,

the appellants, and Mrs McCaw did not intend that the possession of the furniture be transferred to her. If
the debtors possession of these goods could be considered as a right in property then any attempt to defeat
the claims of creditors by a transfer of these goods might be void against the trustee in bankruptcy, in other
words, the question of the motive of such transfer would be very relevant; but, a mere transfer of possession
in order that goods should cease to be the debtors reputed property, is in itself lawful and the motive of the
debtor for so doing is irrelevant. Re Mathieson ([1927] 1 Ch 283, 71 Sol Jo 18, sub nom. Re Mathieson,
Moore (Trustee) v Mathieson, 96 LJ Ch 104, [1927] B & CR 30, sub nom. Re Mathieson, Ex p Trustee, 136
LT 528, CA, Digest Supp.), Atkin LJ, when considering the English Bankruptcy Act, 1914, said ([1927] 1 ChD
at p 298):
If I had to discuss the question of policy (of the Act) at all, I find that goods in the reputed
ownership of the debtor at the date of the bankruptcy are property divisible amongst the creditors, but
there is no provision for defeating the voluntary disposition of them by the debtor so as to make them
cease to be his reputed property.
For reasons which I shall presently discuss I do not consider that the debtor had any property in this
furniture and that the proper inference to be drawn from the transaction of 17 August 1956, is not that he
intended to retain the possession of the goods under cloak of a bogus transaction, but that he intended to
pass the possession to his wife so that they might cease to be his reputed property. Nor was any formal
delivery necessary. This is clear from the following passage in the judgment of Davies LJ, in Ramsay v
Margrett ([1894] 2 QB 18, 63 LJQB 18, 63 LJQB 513, 70 LT 788, 10 TLR 355, 1 Mans 184, 9 R 407, CA, 7
Digest 11, 44.) ([1894] 2 QB at p 28):
In other words, the intention was that both the property in the goods and the possession of them
should pass at once to the wife .... The fact that the goods remained in the house as before was
equally consistent with their being in her possession as with their being in his possession. If there had
been a formal delivery of the goods to the wife, there could have been no question, but I do not think
that such a delivery was necessary.
I also think that the learned Chief Justice gave far too much weight to the entry in the debtors account
to balance 210 8s 11d. At the highest, it shows that the appellants were looking to the debtor as well as
to his wife for payment, but this is consistent with the appellants, at the request of the debtor, genuinely
cancelling their consent to his possession and giving their permission for the wifes possession under the
new agreement of 17 August 1956.
For these reasons I do not consider that it has been established that this transaction of 17 August 1956,
was bogus or that the goods remained in fact in the possession of the debtor.
It has been further contended for the trustee that the transaction of 17 August 1956, amounted to a
transfer of property which was voluntary and, therefore, void under s 112 of the Jamaica Bankruptcy Law, or
which was a fraudulent preference and void under s 116. This argument was based on the submission that
the debtor under the hire purchase agreement of 15 March 1955, was entitled to an option to buy the goods
for their value, that is, for 289, in which event he would be given credit for payments he had already made
under this agreement. He had already in August 1956, paid 79 and was entitled, therefore, to purchase for
210. This meant that his option was worth 79 and the transaction of 17 August 1956, had in fact
transferred the benefit of this option to his wife. This benefit falls within the definition of property in s 2 of the
55 Jamaica Bankruptcy Law. The short answer to this contention is to be found in clauses 9 and 10 of the
hire purchase agreement. Clause 9 provides that this option is only exercisable if the hirer is not indebted to
the appellant in any sum of money in respect of the matters mentioned in all or any clause under the
contract. A similar proviso is contained in clause 10 which again restricts the hirers option to obtain a
release of the goods after seizure by the owner for default by paying the balance due. Now, since the debtor
was under an obligation to pay 8 a month and in the seventeen months from March 1955, to August 1956,
he had only paid 79, he was obviously in default. He had, therefore, no right of option under his agreement
of 15 March 1955, and the transaction of 17 August 1956, was not a transfer of property and, therefore, it
cannot be impeached as a transfer of property under ss 112 or 116 or at all.
Finally, it was contended for the trustee that the debtor had committed an act of bankruptcy on or before
17 August 1956, and by virtue of ss 40 and 42 of the Jamaica Bankruptcy Law the property of the debtor
vested in the trustee from the time of such act. Since the furniture was in the reputed ownership of the
debtor before 17 August 1956, under s 105 it follows that these goods are vested in the trustee. Counsel for
the trustee submitted that the debtor had committed the acts of bankruptcy referred to in s 19, paragraphs
(2), (4) and (10) of the Jamaica Bankruptcy Law. Paragraphs (2) and (10) refer to fraudulent conveyances
and fraudulent preferences. Since it was not shown that the debtor had transferred any property, this
submission under paragraphs (2) and (10) must fail. Paragraphs (4) and (5) read:

(4) that the debtor has by any act declared himself unable to meet his engagements;
(5) that the debtor has presented a bankruptcy petition against himself.
These paragraphs correspond to sub-s (1) (f) of s 1 of the English Bankruptcy Act, 1914, where it is provided
that the debtor commits an act of bankruptcy if he files in court a declaration of his inability to pay his debts
or presents a bankruptcy petition against himself. In my view paragraph (4) is in pari materia with the
paragraphs of the English Act I have cited. Under the Jamaican provision, the debtor does not file a
declaration in court, but I think it is intended to be an act of some solemnity whereby he lets it be known that
he is unable to meet his engagements. The meeting of his creditors on 20 August 1956, was such an act
when he made a declaration in this sense. I am unable to accept the submission of counsel for the trustee
that the debtors conversation with Mr Hanna in July or August and referred to in paragraph 7 of the debtors
affidavit sworn to on 23 November 1957, should be considered an act of bankruptcy within paragraph (4) of
s 19. I do not think any act of bankruptcy has been proved on or prior to 17 August 1956.
For these reasons the order of the court below should be set aside and an order granted as prayed in
the terms set out at paragraphs (1) and (2) of the Summons. The appellants are entitled to their costs here
and in the court below, to be paid out of the bankrupts estate so far as funds permit.
RENNIE J. I concur.
ARCHER J. I also concur.
Appeal allowed.

56
(1958) 1 WIR 57

Ison And Another v Francis And Another

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
20 OCTOBER 1958

Procedure Notice of appeal Time for filing Calculated from time at which the judgment is perfected
Last day thereby determined Appellant not prevented from filing notice of appeal after judgment has been
pronounced and before it is perfected Rule 4 (2), West Indian Court of Appeal Rules.
Notice of appeal was given after judgment was pronounced but before judgment was signed, entered or
otherwise perfected. Rule 4 (2) of the West Indian Court of Appeal Rules provides that the prescribed period
for appealing shall be calculated from the time at which judgment is signed, entered or otherwise perfected.
Held: (i) the notice of appeal was valid and that the appeal stood dismissed on 3 May and could not be
resuscitated.
(ii) the provision in rule 4 of the West Indian Court of Appeal Rules that the appellants have forty-two days
from the date on which the order is perfected prescribes the last day within which they could file their notice
of appeal but it does not prescribe that the appellants may not file their notice of appeal after judgment has
been pronounced and before it has been perfected.
Appeal dismissed.
Editorial Note. This case was on appeal from the Supreme Court of the Windward and Leeward Islands
(Trial DivisionGordon J) to the West Indian Court of Appeal which has given way to the Federal Supreme
Court and must therefore come under the West Indian Court of Appeal Rules.
No cases referred to
On 24 October 1955, judgment was delivered in the suit and on 28 November the appellants served
notice of appeal. Rule 4 (2) of the West Indian Court of Appeal Rules states that the prescribed period for
appeal shall be calculated from the time at which the judgment is signed, entered or otherwise perfected.
On 21 March 1956, the appellants caused the judgment to be signed and entered, and on 16 April 1956, the

respondents also had the judgment signed and entered. Under rule 8 of the said rules they had forty-two
days after filing notice of appeal to file the record of appeal. This period expired on 9 January 1956. Rule
10 (1) of the rules provides that if the appellants fail to file the record of appeal within the time prescribed by
rule 8 the appeal shall stand dismissed but rule 10 (3) gives power to restore the appeal on an application
made within one month of the date on which the appeal stood dismissed. On 19 January 1956, the
appellants applied to have the time extended for filing the record of appeal and this was apparently treated
as an application to restore the appeal and an order was made thereon extending the time for filing the
record to forty-two days after the judges notes were received. These notes were received on 22 March
1956, and the last day for filing the record was accordingly 3 May. On 23 May 1956, the appellants filed an
application for a further extension of time in which to file the record. This application was heard on 26 May
1956, by a single judge who gave the appellants liberty to make the application to the Court of Appeal. On 9
June 1956, the appellants filed a notice of motion for rehearing of their application to further extend the time
in which to file the record. By notice of motion dated 16 October 1958, the appellants applied to the court to
have the appeal restored and to have the time extended for filing the record.
Rule 4 (2) of the West Indian Court of Appeal Rules provides:
The prescribed period for appeal shall be calculated from the time at which the judgment is signed,
entered or otherwise perfected or, in the case of an application, from the date of such refusal.

57
Hudson Phillips and Derek Knight (instructed by Pitt & Copland) for the appellants
F M Henry (instructed by D A Henry) for respondent Francis
H E Hosten (instructed by v C Taylor) for respondents Agnes McLeod and Helen McLeod
C A Bernard (instructed by Renwick & Payne) for respondent W E Julien & Co Ltd
HALLINAN CJ. The essential facts are that judgment in this matter the subject of this appeal was given on
24 October 1955, and on 28 November the appellants served notice of appeal. Under rule 8 of the West
Indian Court of Appeal Rules he had forty-two days after filing notice of appeal to file his recordthe record
of appeal. This period expired on 9 January 1956. Rule 10 provides that if within one month he applies to
have the appeal restored the court can so order. On 9 January the case stood dismissed and on the 19th he
applied to have the time extended for filing the record and this apparently was treated as an application to
restore the appeal and an order was made that he could file the record forty-two days after the judges notes
were received. These notes were received on 22 March and the last day for the filing of the record was
accordingly 3 May.
It is quite clear that if the notice of appeal of 28 November was valid the appeal stood dismissed on 3
May and could not be resuscitated. Counsels submission here to-day is that the notice of appeal of 28
November was invalid because no notice of appeal could be filed until the judgment was perfected and
entered on 21 March. We are unable to accept that view. The provision of rule 4, that the appellant has six
weeks from the date on which the order is perfected, prescribes the last day within which he could file his
notice of appeal, but it does not prescribe that an appellant may not file his notice of appeal after judgment
has been pronounced and before it has been perfected.
Since we do not accept this submission, the whole of the argument addressed to us to-day falls to the
ground. This appeal stood dismissed on 3 May 1956, and cannot be revived; for that reason I consider that
this application must be refused with costs.
Appeal dismissed.

(1958) 1 WIR 58

Shillingford And Another v The Penn Syndicate

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
5 NOVEMBER 1958

Company Law Failure to comply with Articles of Association Winding up Just and equitable
Companies Act of the Leeward Islands, Cap 140, s 114.

TDS and CLC together held 70 per cent. of the shares of a company registered in Dominica, but by the
articles of association of the company they had only six votes, and were in the minority in so far as the
voting power of the shareholders was concerned.
The provisions of the articles of association regarding the holding of general meetings, the election of
officers and the declaration of dividends were not 58 complied with between the years 1951 to 1956.
Notices of a general meeting to be held on 4 February 1957, were sent out to the shareholders and
subsequently thereto TDS and CLC petitioned the court to wind up the company on the ground that it is just
and equitable so to do. The petitioners also attached a proposal to lease property belonging to the company
for a period of 99 years.
Held: (i) as it does not appear to be the intention of the respondents to continue the disregard of the articles
of association or to deny the petitioners their essential rights under the articles of association and as it has
not been established in evidence that the proposal of leasing the property for 99 years was made from any
corrupt motive or that such a lease would undermine the substratum of the company no good ground is
shown to justify the making of an order to wind up the company.
(ii) that the majority shareholders are entitled to determine the policy of the company in the transaction of its
business and they are not necessarily obliged to do so in a way as will ensure the maximum profit for the
company.
(iii) that if it could be shown that the proposed lease for 99 years is ultra vires the memorandum of
association the proper remedy in that event is not the winding up of the company but an action by the
minority interests in the name of the company to restrain those who are acting ultra vires its memorandum of
association.
Appeal dismissed.
Case referred to
Loch v Blackwood [1924] AC 783
Appeal
Appeal by TDS and CLC from the judgment of the Supreme Court of Windward and Leeward Islands (Trial
DivisionGordon J) dated 27 July 1957, dismissing the petition.
PS is a company registered in 1908 with a share capital of $6,000 divided into 1,250 of $4.80 each.
TDS is the holder of 356 of those shares and CLC is the holder of 517 of such shares. Their joint holding
represents 70 per cent. of the share capital of the company. The memorandum of association of the
company provides that the object for which the company is established is the purchase of The Penn in
Granby Street in the town of Roseau. On the formation of the company The Penn was acquired by it and
rented to the Union Club. That tenancy has continued to the present time.
The articles of association of the company provide that every member having from one to twenty-five
shares shall have one vote, over twenty-five shares and up to fifty shares two votes, over fifty shares three
votes. Accordingly TDS and CLC had between them only six votes.
During the years 1951 to 1956 no statutory general meeting of the company was held. No officers were
elected after 1951, no accounts were submitted to the shareholders and no dividends were declared. On 6
December 1956, the minutes of the statutory general meeting of 26 February 1951, were confirmed and
such officers as were then elected purported to continue in office and to function in their respective
capacities. Some time before the petition in this matter was filed, notices were sent out to shareholders for a
meeting to be held on 4 February 1957. And on the agenda were placed such matters as statements of
accounts; declaration of dividends, election of officers and other business.
The company had a proposal under consideration to lease The Penn to the Union Club for 99 years.
TDS and CLC petitioned the court to wind up the company on the ground that it is just and equitable so
to do.
The powers of the court in matters relating to the winding up of a company are contained in s 114 of
Companies Act of the Leeward Islands, Cap 140.

59
The provisions of this section are:
A company under this Act may be wound up by the court under the following circumstances, that is
to say:

(a) whenever the company has passed a special resolution requiring the company to be wound up
by the court;
(b) whenever the company does not commence its business within a year from its incorporation, or
suspends its business for the space of a whole year;
(c) whenever the members are reduced in number to less than five;
(d) whenever the company is unable to pay its debts;
(e) whenever the court is of opinion that it is just and equitable that the company should be wound
up.

GA James (instructed by James and Rigsby) for the appellants

RH Lockhart (instructed by Lockhart) for the respondent
HALLINAN CJ. In this case the petitioners have applied under s 114 of the Companies Act of the Leeward
Islands, Cap 140, to have the company wound up on the grounds that it would be just and equitable in the
opinion of the court that it should be done.
The principles on which the court will make an order under the just and equitable clause are well
known and have been discussed and elucidated in the case of Loch v Blackwood ([1924] AC 783.). The
principal grounds for this petition are two. First that the company for a number of years has failed to comply
with the articles of association with regard to the holding of meetings, the appointment of directors and
officers, the statement of accounts to be audited and the declaration of dividends.
It should be stated at once that this companys affairs are very simple in nature. The only assets of the
company are certain premises in the possession of the Union Club on a tenancy from the company; the
income of the company is merely the rent derived from those premises.
As regards the first point, it is true, as indeed the trial judge found, that there has been for a number of
years a disregard of the provisions of the articles of association. But one of the petitioners, Mr Corriette, in
his evidence stated that during his tenure of office as president and while the other petitioner, Mr T D
Shillingford, was secretary there was no annual statement for five years, no dividends were paid, no
accounts were rendered and no officers were elected during this period. In Loch v Blackwood ([1924] AC
783.) the Privy Council felt it unnecessary to decide whether a complete disregard of the articles of
association by the company without corrupt motive would be sufficient grounds on which to make an order
under the just and equitable clause. I do not think it necessary even in this case to make a decision on
that point. It is sufficient to say that in the past the petitioners themselves while officers of the company
have committed the same breach of the articles of association as to-day they complain that the respondents
have committed. Nor does it appear to be the intention of the respondents to continue this disregard of the
articles of association. If they were to do so then it might be such a denial of the rights of the minority
shareholders as would justify an order for winding up. But some time before this petition was filed, on 26
January a notice went out for a meeting to be held on 4 February that is to say on the first Monday in
February as provided in article 15 of the articles of association. And on the agenda were placed such
matters as statements of accounts, declaration of dividends, election of officers and other business. Looking
at the evidence as a whole I am not satisfied that either in the past or in the future it was the intention of
those who have the majority of the voting power to deny the petitioners their essential rights under the
articles of association, such as appointment of directors, the

60
holding of meetings, the taking and inspection of accounts, the appointment of auditors and the
declaration of dividends.
It has been proposed to make a lease of the premises which constituted the assets of the company to
the Union Club for 99 years; it has been submitted for the petitioners that this is ultra vires the memorandum
of association and, as I understand counsel, would be an improvident disposition of the assets of the
company. As regards its being an improvident disposition, in my view the majority shareholders are entitled
to determine the policy of the company in the transaction of its business and they are not necessarily obliged
to do so in such a way, as will ensure the maximum profit for the company. They certainly cannot act ultra
vires the memorandum of association or the articles of association. But the proper remedy even then is not
in winding up the company, for the minority interest can bring an action in the name of the company to
restrain those who are acting ultra vires the memorandum of association and its articles of association.
It has not been established in evidence that this proposal of leasing for 99 years is made from any
corrupt motive whereby those who have the majority of the voting power would gain some material
advantage which would be denied to the minority or to the petitioners. Nor in my view would the grounds of
this proposed lease undermine the substratum of the company.
For these reasons I consider that the court below was right in holding that the failure to comply with the
articles of association or the proposed grant of the lease for 99 years is not sufficient ground to justify the
making of an order for winding up the company. In my opinion this appeal should be dismissed with costs.

RENNIE J. I concur.
ARCHER J. I also concur.
Appeal dismissed.

(1958) 1 WIR 61

Flax v Legal Assistant

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
10, 11, 28 NOVEMBER 1958

Compulsory acquisition Trespass to land Effect to be given to proviso Admissibility of evidence

Public policyProcedure to be adopted when taking objection Section 21 (1), Road Ordinance of the Virgin
Islands (No 12 of 1955).
Land for making a road was taken under a second proviso in an ordinance that stated in cases where new
roads are to be made any land needed for that purpose may be taken for this purpose upon notice thereof
being given to the owner....
The owner of the land brought an action in trespass and at the trial sought to put certain documents in
evidence. Counsel for the defendant objected to the documents going in evidence on the ground that their
admission would be contrary to public policy.
Held: (i) it is not correct to say that a proviso can only be used to create an exception or to state a condition;
it may in exceptional circumstances contain matter which is in substance a fresh enactment.
(ii) Section 21 (1) of the Road Ordinance of the Virgin Islands omits to specify, the person on whom the
power of making the decision to take land for a new 61 road is conferred and although the courts confronted
with legislation which is obscure or elliptical will try to give it some meaning and practical effect no useful
purpose would be served by attempting to give some effect to the second proviso of s 21 (1) since the court
cannot by implication or deduction usefully supply the omission.
(iii) that where objection is taken to the admission of evidence on the ground that its admission would be
contrary to public policy it is not uncommon in modern practice for a ministers objection to be conveyed to
the court; at any rate in the first instance, by an official of the department who produces a certificate which
the minister has signed stating what is necessary provided that if the court is not satisfied by that method it
can request the ministers personal attendance.
Appeal allowed.
Cases referred to
Duncan v Cammell Laird & Co, Ltd [1942] 1 All ER 587, [1942] AC 624, 111 LJKB 406, 166 LT 366, 58 TLR
242, 86 Sol Jo 287, HL, 2nd Digest Supp
Rhondda Urban Council v Taff Vale Ry Co [1909] AC 253, 78 LJKB 647, 100 LT 713, 73 JP 257, 25 TLR
483, 7 LGR 616, HL, 42 Digest 659, 681
Cookson v Lee (1853), 23 LJ Ch 473, 21 LTOS 258, LC & LJJ, 35 Digest 284, 378
Appeal
Appeal by the plaintiff from the judgment of the Supreme Court of the Windward and Leeward Islands (Trial
Division LEWIS, J), delivered on 24 April 1958, at Tortola in the British Virgin Islands dismissing the
plaintiffs claim for damages. The facts appear in the judgment.
H L Harney and E E Harney (instructed by H L Harney) for the appellant
Jacobs Attorney-General and O Brown (instructed by H A Besson) for the respondent

HALLINAN CJ. In this case the plaintiff-appellant claimed damages for trespass to land and for damage
done by animal trespass. He sues the Crown by right of its Government in the Virgin Islands who through its
agents entered and took possession of part of the plaintiff-appellants land in Virgin Gorda for the purpose of
constructing a road 650 feet long and 20 feet wide to connect up the premises of a mining company with a
public road.
While constructing the road, the Crowns agents negligently left the appellants lands unfenced; animals
entered and did damage. The court below found for the appellant upon his claim for cattle trespass and
awarded $50.40 damages. From this decision there has been no appeal by either party.
The defence of the Crown on the main cause of action (that is trespass for entering and taking
possession of the appellants land) was that the Crown took the land in order to make a public road by virtue
of powers conferred upon it by the second proviso to s 21 (1) of the Roads Ordinance of the Virgin Islands
(No 12 of 1955). The trial judge found that the Crown had acted in the valid exercise of its statutory power
and that the appellants claim in trespass failed. He assessed the compensation to which the appellant was
entitled upon the compulsory acquisition of his land (about three-tenths of an acre) at $80.00. Against that
decision this appeal is brought.
The statutory provision under which the Government of the Virgin Islands purported to take the
appellants land is contained in s 21 (1) of the Roads Ordinance of the Virgin Islands which reads as follows:
21. (1) Subject to the provisions of sub-s (2) of this section where it is necessary to widen a public
road, any land up to six feet in width on either side of the road may be taken for the purpose of
improving or repairing such road without the payment of any compensation to the owner except for the

62
value of any buildings, fences, or things growing thereon at the time when such land is taken :
Provided that where a road is discontinued as a public road the land shall revert to the person who
would be entitled to it, if the land had not been taken. Provided further, that in cases where new roads
are to be made any land needed may be taken for this purpose upon notice thereof being given to the
owner and a reasonable compensation, if requested, shall be made to the owner in respect of such
land.
It is convenient to deal first with the submission by appellants counsel that the land was not taken bona
fide for a public purpose and the statutory power was therefore wrongfully exercised. The Roads Ordinance
states that it is an ordinance relating to public roads and undoubtedly any attempt to take lands purely to
benefit a private interest, albeit under the guise of taking it for a public road, would be a wrongful exercise of
the statutory power.
In order to establish this wrongful purpose or intention, the appellant had sought to adduce evidence
that the mining company had threatened to abandon its enterprise unless it was given the road through the
appellants land and that the Government in granting its request had not acted in the public interest but to
aid a concern in carrying on business for private profit. The appellant summoned Mr Creque, an
Administrative Assistant to the Government of the Virgin Islands, to produce certain documents including the
brief to the Finance Committee dated 17 August 1957. He did not produce it, but counsel for the appellant
attempted to put in a copy of the brief through this witness, whereupon counsel for the respondent
objected. The trial judge did not look at the document and excluded it on the ground that its admission
would be contrary to public policy. At the same point in the evidence a copy of a letter dated 13 June 1957,
from appellant to Mr Creque (Ex HCI) was put in through that witness. At that juncture the trial judge ruled
that no further mention of the mining company must be made in the evidence.
Neither of these rulings was recorded by the learned trial judge, but that they were made has been
conceded by counsel for the respondent after this court had read the affidavit of appellants counsel, Mr H L
Harney, and had heard argument. It is most important that a note by the trial court should be made of all
rulings on evidence, and it is an embarrassment for this court to decide what happened in the court below
upon the recollection of counsel.
It has been submitted by counsel for the appellant that the objection to admitting the brief was not
taken in the proper form. The matter is discussed in Duncan v Cammell Laird & Co, Ltd ([1942] 1 All ER
587, [1942] AC 624, 111 LJKB 406, 166 LT 366, 58 TLR 242, 86 Sol Jo 287, HL, 2nd Digest Supp.) by Lord
SIMON, LC ([1942] 1 All ER at p 593) :
If the question arises on subpoena at the hearing it is not uncommon in modern practice for the
ministers objection to be conveyed to the court, at any rate in the first instance, by an official of the
department who produces a certificate which the minister has signed, stating what is necessary. I see
no harm in that procedure, provided it is understood that this is only for convenience and that if the
court is not satisfied by this method, it can request the ministers personal attendance.

There is a paragraph on this matter in Phipson on evidence, 8th Edn, p 182: Facts excluded by Public
Policy, Objection how taken. It is there stated that the objection can be taken not only by a head of
department but by counsel instructed by him to object. But the cases there cited hardly support this
proposition. Of course the judge himself may also look at the documents in the absence of a certificate of
objection from the head of department and decide the matter. In the present case, I do not consider that the
objection was properly made and therefore the judge should not have entertained it.
This court has not before it the trial judges reason for excluding evidence 63 relating to the mining
company but it is conceded by counsel for the appellant that the evidence on which the appellant sought to
establish that the land was not acquired bona fide for a public purpose rested on the contents of the brief to
the Finance Committee. In these circumstances and since the appellant was already in the possession of a
copy, the court permitted him to read the brief in court. Having heard its contents, I am satisfied that such
contents could not reasonably afford sufficient evidence to support a finding that the land was not acquired
bona fide for a public purpose. It is common knowledge that it is in the interest of under-developed
territories such as the Virgin Islands to encourage industrial enterprise; and the fact that the road would
benefit the company is not inconsistent with its being for the public benefit also. The Administrator in his
letter of 21 August 1957 (Ex EF 1), notifying the appellant that some of his land would be taken for the road,
states that it would be declared a public road under s 4 (1) of the Roads Ordinance.
The matters so far considered in this judgment do not in my view afford sufficient grounds for setting
aside or varying the judgment of the court below.
A more difficult question that arises in this appeal is whether the very imperfect statutory provision on
which the respondent relies (ie the second proviso to s 21 (1) of the Roads Ordinance) and the procedure
which the Crowns agents followed provide a legal justification for taking the appellants land.
Counsel for the appellant contends first that a proviso can only be used to create an exception or state
a condition and that it cannot contain a fresh enactment as this second proviso to s 21 (1) purports to do;
secondly that there was a duty on the Governor in Council to make regulations under s 18 of the Ordinance,
providing inter alia for the form and service of notices, and no such regulations have ever been made; and
finally that even if a notice might have been served in the absence of regulations, the only proper person to
sign the notice was the Surveyor of Works and Roads and not the Administrator, for under s 22 of the
Ordinance the Surveyor is charged with the duty of carrying out and enforcing the provisions of the
Ordinance.
I think that counsel has expressed his first contention too widely, for in Craigs On Statutes (5th Edn, at p
203) it is stated that sections, though framed as provisoes upon preceding sections, may exceptionally
contain matter which is in substance a fresh enactment, adding to and not merely qualifying what goes
before, and cites as authority Rhondda Urban Council v Taff Vale Railway Co ([1909] AC 253, 78 LJKB 647,
100 LT 713, 73 JP 257, 25 TLR 483, 7 LGR 616, HL, 42 Digest 659, 681.). In my view the most serious
defect in the second proviso to s 21 (1) is that it omits to specify the person on whom the power of making
the decision to take land for new roads is conferred. In some cases where an enabling statute omits some
detail, the courts can by implication supply what is required. Thus CRAIGS in the same edition at p 105
states:
If a statute is passed for the purpose of enabling something to be done, but omits to mention in
terms some detail which is of great importance (if not actually essential) to the proper and effectual
performance of the work which the statute has in contemplation, the courts are at liberty to infer that
the statute by implication empowers that detail to be carried out.
In Cookson v Lee ((1853), 23 LJ Ch 473, 21 LTOS 258, LC & LJJ, 35 Digest 284, 378.) an Act gave
trustees power to sell lands for building purposes and it was held that this by implication included power to
expend some of the purchase moneys in setting out the lands and making roads. But in the instant case
there is nothing in the second proviso to s. 21 (1) to guide us as to who was intended to exercise the power.
I gravely doubt whether the Surveyor of Works and Roads is given any such power which involves decisions
of policy and the appropriation of public funds; in such matters the Surveyor would usually carry out the
decisions of the Legislature or of the Executive who is the chief instrument in making policy.

64
It is interesting to look at the Roads Ordinance, 1909, of the Virgin Islands which was repealed by the
present Roads Ordinance (No. 12 of 1955). Section 31 of the Ordinance of 1909 ran as follows:
Whenever, for the purpose of making any new public road or of improving any existing public road,
any land is acquired under the law for the time being in force for the acquisition of land for public
purposes, no compensation shall be allowed to the owner of such land except for the value of any
building thereon or of anything growing thereon at the time when such land is acquired.

In 1909 the relevant law relating to the acquisition of land for public purposes was The Acquisition of
Lands Acts, 1889 and 1890 of the Leeward Islands. The essential steps in the procedure were : the
approval of the Legislature, a notice to interested parties by a Government Officer, and the assessment of
compensation by a judge of the Supreme Court and a special jury.
It may well have been the intention when the second proviso to s 21 (1) of the Ordinance was so
carelessly drafted, that the procedure prescribed under the law relating to land acquisition for public
purposes then in force should apply, namely the Land Acquisition Act, 1944, of the Leeward Islands. The
effect of this second proviso under this interpretation would be that the approval of the Legislature of the
Virgin Islands would be unnecessary (it having been given by the second proviso) and that the rest of the
procedure prescribed by the Land Acquisition Act, 1944, should then be followed, except perhaps that the
form and service of notices would be prescribed by regulations made under s 18 of the Roads Ordinance,
1955, of the Virgin Islands. This procedure to-day (under the Act of 1944) would be : the approval of the
Legislature, a notice in the Gazette by the Governor in Council to that effect, notice to interested parties by
an officer authorised by the Governor in Council, the appointment of an Assessment Board and the
Assessment of compensation under prescribed Rules.
Although the courts, confronted with legislation which is obscure or elliptical, try to give it some meaning
and practical effect, I do not consider that any useful purpose would be served by attempting to give some
effect to the second proviso to s 21 (1). The Legislature has purported to confer a power without specifying
on whom this power is conferred and I do not think the court can by implication or deduction usefully supply
the omission. Comparing s 31 of the Ordinance of 1909 with the second proviso to s 21 (1) of the Ordinance
of 1955, it would seem that the draftsmen in 1955 wished to give a right of compensation but wished to
simplify the private However, where a statute purports to effect rights, whether private or public, the
Legislature cannot expect the courts to supply essential particulars by mere surmise rather than by
implication or deduction. In my view the second proviso is so imperfect as to be ineffective.
For these reasons I consider that the judgment of the court below in awarding $50.40 on the claim for
cattle trespass should be affirmed and that the rest of the judgment should be set aside, and in lieu thereof
there should be judgment for the appellant on his claim for trespass to the land taken by the Crown to make
a road, with damages which have been agreed by both parties to this appeal at $200.00. The appellant is
entitled to his costs here and below.
RENNIE J. I concur.
ARCHER J. I concur.
Appeal allowed.

65
(1958) 1 WIR 66

Blackwood v Chen
FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
24, 25 NOVEMBER 1958

Negligence Duty of person in charge of an animal on the highway.

W B s mule was on the highway with a boy in charge of it. The boy held the mule by a rope which went
around its head. LCs motor van drove towards the mule; the mule began to prance and the van stopped
about six yards from it. The light of the van startled the mule and the boy cast the rope round the head of
the mule to drag it back. Just then the mule reared up and damaged the bonnet and body work of the van.
Held: that it is not sufficient in order to establish the liability of a defendant to find as a fact that it was the act
of the defendants agent which caused the damage; it must also be proved that the act constituted a lack of
reasonable care so that a reasonable man ought to have seen that the act or action complained of might
have caused the damage. The boy in casting the rope round the head of the mule was obviously trying hard
to control the animal : in the circumstances it is not considered that the boys action constituted evidence of
negligence.

Appeal allowed.
Cases referred to
Deen v Davies [1935] All ER Rep 9, [1935] 2 KB 282, 104 LJKB 540, 153 LT 90, 51 TLR 398, 79 Sol Jo 381,
CA, Digest Supp
Aldham v United Dairies (London), Ltd [1939] 3 All ER 478, 83 Sol Jo 674, revsd [1939] 4 All ER 522, CA,
Digest Supp
Thomas v Caymanas Estates, Ltd, Clarks Reports 373
Appeal
Appeal by WB from the decision of the Supreme Court of Jamaica (Appellate DivisionCundall CJ (Ag),
Cools-Lartigul and Semper JJ) dated 17 July 1958, dismissing his appeal from the judgment of the Resident
Magistrate for the parish of Saint Elizabeth whereby he found in favour of LC and awarded him damages.
The facts appear in the judgment.
Alberga (instructed by Delapenha and Iver) for the appellants
Lindo (instructed by Wellesley Campbell) for the respondents
HALLINAN CJ. In this case the motor van of the plaintiff-respondent was being driven on 23 February
1957, from Raheen towards Siloah at night by Noel Wilson, his chauffeur. The van passed a man leading a
mule and ahead of him was another mule being held by a boy with a rope. This mule was prancing about
and, when about six yards from the mule the van stopped, the mule rearing up damaged the bonnet and
body work of the van. The respondent sued in the court of the Resident Magistrate for damages to his
motor van and the appellant counter-claimed for damages to his mule. The learned Resident Magistrate
found that the damage was due to the mule jumping on the bonnet of the van as a result of the rope by
which the boy held him being cast and touching the mules back. The Magistrate found that this was the
reason why the mule jumped. In the last paragraph of his Reasons he says :
I therefore found that the defendants servant or agent was guilty of negligence and gave,
judgment for the plaintiff for 85 2s 11d with costs.
He also dismissed the appellants counter-claim with costs.
In the circumstances of this case the burden of proving that the appellants boy holding the mule was
guilty of negligence was on the respondent. The respondent had to establish that the appellants agent,
having brought an animal on to the highway, had not taken reasonable care to prevent it from doing damage
to person or property thereon. What constitutes reasonable care is a

66
question of fact in each case and the standard of reasonable care may vary according to the
circumstances. This is the law as laid down in the case of Deen v Davies ([1935] All ER Rep 9, [1935] 2 KB
282, 104 LJKB 540, 153 LT 90, 51 TLR 398, 79 Sol Jo 381, CA, Digest Supp.).
We have also been referred by counsel for the respondent to the statement of Du Parcq LJ, in a case
concerning injuries inflicted by a horse (Aldham v United Dairies (London), Ltd ([1939] 3 All ER 478, 83 Sol
Jo 674, revsd [1939] 4 All ER 522, CA, Digest Supp.), [1939] 4 All ER 522 at p 527), and also we have been
referred to the Jamaican case of Thomas v Caymanas Estates, Ltd (Clarks Reports 373.), where in the
course of the judgment it is stated (Clarks Reports at p 374):
Those responsible for sending cattle along the road must not do so in such a way as to create a
nuisance nor must they be negligent in their control.
It is clear from these authorities that it is not sufficient in order to establish the liability of a defendant to find
as a fact that it was the act of the defendants agent which caused the damage; it must also be proved that
this act constituted a lack of reasonable care so that a reasonable man ought to have seen that the act or
action complained of might have caused the damage. It would appear from the judgment of the learned
Resident Magistrate that he assumed because the boys action with the rope had caused the mule to jump
that the boy was therefore, guilty of negligence. The evidence of Noel Wilson, the respondents chauffeur,
states that the lights of the van startled the mule. The mule must then have begun to prance about. Wilson
further states :
The boy who was driving it [the mule] cast a rope round the mules head. The rope was always on
the mules head and the boy cast it to drag him back.

The boy in casting the rope round the head of the mule was obviously trying hard to control the animal; in
these circumstances I do not consider that the boys action constitutes evidence of negligence.
For these reasons I consider that this appeal should be allowed. The appellant has not pressed his
counter-claim and the Magistrates order dismissing the counter - claim with cots must be affirmed.
However, the judgment of the Magistrate in favour of the respondent on his claim and the order for costs
must be set aside, as also the judgment of the full court affirming that decision. The respondents claim
must be dismissed. The appellant is entitled to his costs on the claim against him in the Magistrates court
and to his costs in the Federal Supreme Court, fixed at 12. I do not consider that any order for costs in the
full court should be made: the appellants grounds of appeal in that court were defective but at the same
time I feel that the full court should have permitted their amendment.
RENNIE J. I concur.
ARCHER J. I concur.
Appeal allowed.

67
(1958) 1 WIR 68

Cato And Another v Allen And Another

FEDERAL SUPREME COURTORIGINAL JURISDICTION
HALLINAN CJ
9, 10, 12 JULY 1958

Election petition Whether the making of a cross is mandatory What will suffice the requirement of
making a cross St Vincent Legislative Council (Elections) Ordinance, 1951, s 42 (3).
On the application of petitioners that a recount be had of the votes cast in an election held on 25 March
1958.
Held: (i) that s 42 (3) of the St. Vincent Legislative Council (Elections) Ordinance, 1951, makes it mandatory
for a voter to make a cross on the ballot paper but that where the voter appear to have made a genuine
attempt to make a cross his attempt should be treated as compliance with the Ordinance.
(ii) that where the cross is made in an ambiguous position, it will be a valid vote if after striking out all that is
unessential for the cross it clearly indicates an intention to vote for the candidate who claims it.
Decision in favour of petitioner.
Cases referred to
Birmingham Case, Woodward v Sarsons (1875), LR 10 CP 733, 44 LJCP 293, 32 LT 867, 39 JP 776, 20
Digest 111, 892
Re West Calgary, Bennett v Shaw [1922] 3 WWR 167, 70 DLR 348
Ragoobir v Punch & Dass, suit 176 of 1956 of Trinidad
Hawkins v Smith (1883), Supreme Court of Canada 676
The facts appear in the judgment.
HOB Wooding QC and S de Freitas (instructed by S de Freitas) for the petitioners
Nanton & Hughes (instructed by Nanton) for the respondents
Dias for the returning offer
HALLINAN CJ. The election for two members to the Legislature of the West Indies from St Vincent was
held on 25 March 1958, and Mr Allen the first respondent and Mr Adams were declared duly elected. The
figures were Allen 5,515, and Cato 5,475.
The petitioners in these proceedings alleged that the returning officer had erroneously rejected votes
and because of various other irregularities the petitioner Cato had in fact a majority of valid votes over the
respondent Allen.

A recount was ordered on 3 May 1958, before the Deputy Registrar of this court. There must have
been many ballots rejected by the returning officer or by the presiding officers at the polling stations for by
consent of the parties before the Deputy Registrar the votes of Allen were increased by 201 and those of
Cato by 208. This reduced the lead of Allen over Cato to 33. In addition 71 ballots were reserved for the
decision of this court as being challenged and not admitted. I shall refer to these 71 ballots as the 71
disputed votes.
On this, the first recount, another important fact emerged: the returning officer had returned a total of
12,817 ballots which had gone into the ballot boxes, that is to say, valid and rejected votesspoiled ballot
papers of course do not go into the boxes; the presiding officer receives a spoiled ballot paper from a voter,
gives him another and writes spoiled across the paper and puts it into an envelope marked spoiled. The
valid and rejected votes produced to the Deputy Registrar were only 12,726, a discrepancy of at least 91
votes which were apparently missing. For this reason a second recount was ordered by ARCHER, J, on 27
May 1958. The Deputy Registrar conducted a most exhaustive inquiry pursuant to this order, as a result of
which every ballot paper issued by the returning officer was accounted for and it was quite clear that the
presiding officers and the poll clerks had failed to comply with the 68 Legislative Council (Elections)
Ordinance, 1951, of St Vincent [as modified by the Federal Elections (Modification of Local Laws)
Regulations, 1957] under which the election was held. This Ordinance regulates the first election to the
Federal Legislature pursuant to Article 107 of the Constitution of the West Indies. I shall refer to this
Ordinance of 1951 as modified by the Regulations of 1957 as the Ordinance of 1951. The returning officer
was joined as a respondent by the Order of 27 May 1958, but when I refer to the protagonists in the petition I
mean more particularly the petitioner Cato and the respondent Allen.
The second recount made two discoveries which were important to the position of the parties to this
petition. First, envelopes were found which although they were in the ballot boxes had not been produced
for counting. These apparently valid votes totalled 48 and were found as follows: 6 votes in St Georges Box
No 1, 38 in Box No 2 South Leeward, and 4 in Box No 4 of the same polling station. I am grateful to the
protagonists for reaching agreement about these 48 discovered votes: by consent 40 are valid for Cato and
8 for Allen. At this stage Allens lead is reduced to 1, the figures being Allen 5,724, and Cato 5,723.
The second discovery on the second recount was that from each of five polling stations there was found
an envelope marked spoiled and the ballots in these envelopes amounted to 60. I shall discuss later in this
judgment the relevance of these 60 votes to the present proceedings.
It is convenient now to deal with the 71 disputed votes reserved for the decision of this court after the
first recount. Counsel for the protagonists during the trial have greatly helped by reducing the number in
dispute. It is now admitted that 9 be rejected, that 27 be admitted as valid votes for Cato and 11 for Allen.
Thus for the first time in these proceedings Cato obtains a lead of 15, the figures being Cato 5,750, and
Allen 5,735. Of the 71 disputed votes only 24 now remain in dispute, 10 being claimed by Cato and 14 by
Allen.
Mr Wooding for the petitioner has grouped the objections to these 24 disputed votes under four heads.
First Group: Marks which are not a perfect cross but which might be considered an honest attempt to
make a cross.
Second Group: Marks which because of their position do not clearly indicate the candidate for which the
voter intended to vote.
Third Group: Ballot papers on which there are 2 clear votes and a third mark which appears to have
been erased or cancelled.
Fourth Group: Marks which would have been votes but are erased and therefore cancelled.
Section 42 (3) of the Ordinance of 1951 provides that a voter shall mark his ballot paper by making with
a black-lead pencil and not otherwise a cross within the space containing the name of the candidate for
whom he intends to vote (so, however, as not to vote for more candidates than there are seats to be filled)
so as to indicate clearly the candidate or candidates for whom he intends to vote.... It will be seen that the
first three groups concern the question whether there has been compliance with s 42 (3). The fourth group
is concerned with s 47 (2) (b) which provides that a presiding officer must reject any ballot paper which has
not been marked for any candidate.
Before making any decision upon the disputed ballots in the first group it is necessary to determine what
is meant by making a cross. The Ballot Act enacted in England in 1872 provides in s 2 that the voter should
secretly mark his vote on the ballot paper. In the schedule to that Act there is a form of directions for the
guidance of voters in voting and this contains a statement that the voter shall place a cross on the right
hand side opposite the name of the candidate for whom he votes thus X.
In the leading case of Woodward v Sarsons (Birmingham Case, Woodward v Sarsons (1875), LR 10 CP
733, 44 LJCP 293, 32 LT 867, 39 JP 776, 20 Digest 111, 892) it was held that this provision 69 about a cross
was directory and not imperative and it was sufficient if the paper is marked so as to show that the voter
intended to vote for some one and so as to show for which of the candidates he intended to vote. In Canada
s 62 (3) of the Dominions Elections Act, 1920, provides that the voter shall mark the ballot paper by making
a cross with a black lead pencil. In the Canadian case of Re West Calgary, Bennett v Shaw ([1922] 3 WWR

167, 70 DLR 348.) it was held that words by making a cross are mandatory. It was not necessary to
decide if the words with a black lead pencil were mandatory also. In Trinidad s 42 (3) of the County
Council Ordinance obviously follows s 62 (3) of the Canadian Act of 1920 but instead of providing that the
ballot paper be marked by making a cross with a black lead pencil the Trinidad Ordinance uses the words
by making with a black lead pencil and not otherwise a cross. The numbering of the s 42 (3) of the
Ordinance of 1951 which regulates the election in question in these proceedings is the same as in the
Trinidad Ordinance and presumably is based on the same model. The words reproduced by the Trinidad
Ordinance were judicially interpreted in the Supreme Court of Trinidad in Ragoobir v Punch & Dass (suit 176
of 1956 of Trinidad.). I have had the advantage of reading the majority judgment of Camacho and Watkin
Williams JJ, and the minority judgment of Archer J, in that case. The question of whether the words about
using a black lead pencil and of making a cross were mandatory or directory was very fully discussed, the
majority deciding that these were mandatory, while Archer J, was of opinion that the use of a black lead
pencil was mandatory but the making of a cross was directory. He would give to the words about making a
cross the same liberal interpretation as was accorded to the directions in the Ballot Act of 1872 by the
judgment in Woodward v Sarsons (Birmingham Case, Woodward v Sarsons (1875), LR 10 CP 733, 44 LJCP
293, 32 LT 867, 39 JP 776, 20 Digest 111, 892). Although much of the reasoning in the judgments is
concerned with general principles of statutory interpretation, with comparisons between s 42 (3) and other
provisions of the Trinidad Ordinance, the pith of Archer Js reasons for holding the making of a cross to be
directory is contained in the following passage:
In s 42 (3) of the Ordinance the words and not otherwise are used in association with the words
by making with a black lead pencil. These words do not appear in s 62 (3) of the Canadian Act. They
indisputably qualify the words by making with a black lead pencil and not the words a cross. The
qualification is in marked contrast to the absence of qualification of the words a cross and the
expression by making with a black lead pencil and not otherwise a cross is strikingly different from the
expression by making a cross with a black lead pencil, and not otherwise. A comparison of these two
expressions indicates to my mind a clear intention to distinguish, by the use of the former expression,
between the provisions with regard to the use of a black lead pencil and the provisions with regard to
the making of a cross. It is impossible to ignore the words and not otherwise or the position they
occupy in the subsection and they must be given their obvious meaning.
The judgment of the majority points out that s 42 (3) has been drafted from the Canadian model and the
provision about making a cross is not contained in a form of directions to voters but in a section of the Act
which the Canadian courts have held to be mandatory. The judgment explains the use and grammatical
position of the words and not otherwise in the following passage:
That is certainly a persuasive argument but we do not think that it should prevail. In our view the
words requiring a cross as the only way of marking the ballot paper are clearly mandatory and need no
further emphasis.
It is obviously considered necessary that a black lead pencil should be used as against any other
form of pencil or pen. To the outside world it would no doubt seem to be a matter of unimportance.
One consideration in deciding 70 whether a provision is mandatory or directory is the apparent
importance to be attached to the requirement. Consequently if a requirement which is outwardly
unimportant is intended to be construed as mandatory the wording of the provision must be sufficiently
emphatic to reveal that intention. That seems to us to be a satisfactory explanation of the insertion of
the words and not otherwise to qualify the words a black lead pencil only.
In its practical application the decision of the majority is softened by their also holding that where a voter
appears to have made a genuine attempt to make a cross, his attempt should be treated as compliance with
the statute. In doing so they followed the decision in the Canadian case of Hawkins v Smith ((1883),
Supreme Court of Canada 676.). They conclude their observations on this part of their judgment as follows:
We are well aware that there are many illiterate or semi-illiterate persons in this colony who may
have difficulty in making a cross and we think it is essential that they should not be disfranchised
through no fault of their own. That is why we think that a liberal interpretation of the requirement to
make a cross is necessary in order to give effect to the intention of the legislature. The construction
which we adopt would have the effect of disfranchising those who deliberately ignore the directions
given to them. We can see no hardship in such persons being disfranchised. Indeed we think it right
that they should be. If a man who has been told to make a cross deliberately makes an O or a tick he
is not doing or attempting to do the act which records a vote. We think it is right to give as much
latitude as possible to the man who tries to do what he is told.

The judgments in Ragoobirs case (Ragoobir v Punch & Dass, suit 176 of 1956 of Trinidad) have been
of great assistance. After a careful perusal I consider with respect that the decision of the majority is right
and for the reasons given by them and already referred to in this judgment.
With regard to the second group of disputed votes, those where the cross is made in an ambiguous
position, I accept as a useful guide the principle cited by Mr Hughes from Fraser On parliamentary Elections,
namely, that if one strikes out all that is unessential for the cross, does what remains clearly indicate an
intention to vote for the candidate who claims it as such?
No general principle applicable to the third or fourth groups need be discussed.
After an inspection of each of the 24 disputed votes I have rejected 6, namely Nos 8, 2, 30, 14 and 28
claimed by Allen and No 15 claimed by Catoof the remaining 18, I find that 9 are valid votes for Allen and 9
for Cato. Cato maintains his lead of 15 votes over Allen, the figures being Cato 5,759, and Allen 5,744.
I turn now to consider the 60 votes found on the second recount in envelopes marked spoiled. In all
cases the ballots were not marked spoiled in accordance with s 42 (4) of the Ordinance of 1951 and in all
but 9 ballots from Box 2 North Windward, the counterfoil had been torn off. This under s 42 (3) is done by
the presiding officer after the voter has completed the ballot and immediately before it is put into the box.
There was also this remarkable fact about these 60 votes in the spoiled envelopes. The Poll Books
showed the names of all those who voted at the station and the votes in the ballot boxes whether valid or
rejected should correspond with the Poll Book record of those who voted. In each of these five polling
stations the number of valid and rejected votes could only be made to tally with the number recorded in the
Poll Book as having voted, by adding thereto the ballots contained in the envelope marked spoiled. I
consider that this constitutes strong evidence that these votes had actually gone into the ballot boxes and
had been put later into envelopes marked spoiled or had wrongfully been kept out of the ballot boxes. In
either event I consider that before any conclusion could be reached 71 on these 60 ballots the evidence of at
least the presiding officers concerned would have to be taken.
Under regulation 10 (6) of the West Indies Legislature (Appointment, Election and Membership
Controversies) Regulations, 1958, it would have been competent for the respondent Allen to have called
such evidence, but he has not delivered a list of objections raising this issue as to the 60 votes in
compliance with rule 21 of the Federal Legislature (Membership Controversies) Rules, 1958. It is imperative
that the trial of election petitions proceed without delay and for this purpose each party must have notice of
matters put in controversy by the other side so that there is no prejudice through surprise and no need for
adjournments. At the same time on this occasion I was prepared to pursue this matter of 60 votes as it
appeared that electors may have been disfranchised by the misconduct of some presiding officers and that
this misconduct might have affected the result of the election. Woodward v Sarsons (Birmingham Case,
Woodward v Sarsons (1875), LR 10 CP 733, 44 LJCP 293, 32 LT 867, 39 JP 776, 20 Digest 111, 892) is
authority for the proposition that if there be no reasonable ground to believe that a majority of the electors
may have been prevented from voting in favour of the candidate they preferred and if the election be
substantially an election by ballot, the election will not be void notwithstanding there may have been mistake
or misconduct in the use of the machinery of the Ballot Act.
I therefore directed the Deputy Registrar to examine these 60 votes in the presence of the parties or
their counsel and ascertain how many of these votes, had they been put in the ballot boxes, would have
been valid votes for Cato or for Allen. The report of the Deputy Registrar showed that by consent 27 ballots
were not votes for either Cato or Allen, 19 ballots were votes for Allen and 9 for Cato, 5 votes were disputed
and these have been marked A, B, C, D and E, the first 4 being claimed for Allen and E being claimed for
Cato. I find that C should be rejected and that A, B and D be considered as votes for Allen and E as a vote
for Cato. The result of this examination of the 60 votes is therefore that, had they been put in the ballot
boxes, Allen would have received 22 more votes and Cato 10. If these 10 votes were added to those of
Cato he would have a total of 5,769 votes and if the 22 votes were added to those of Allen he would have
5,766in other words, Cato would still have a majority of 3 votes and therefore the conduct of the presiding
officers with regard to those votes would not have affected the result of the election of Allen or of Cato.
Under the principle enunciated in Woodward v Sarsons (1) the manner in which these 60 votes were dealt
with would not justify me in finding that the election was void.
My determination on the petition is that the respondent Allen was not duly elected and that the petitioner
Cato was duly elected and ought to have been returned and I shall certify this determination to the Speaker
of the House of Representatives.
Order as to costs: each respondent to pay half the petitioners costs.
Decision in favour of petitioner.

72
(1959) 1 WIR 73

Williams v The Attorney-General

SUPREME COURT OF BARBADOSTRIAL DIVISION
HANSCHELL J
27 FEBRUARY 1959

Revenue Importation of dutiable article Liability for duty Jurisdiction of the Court Trade Act, 1910 [B],
s 165 Crown Proceedings Act, 1955 [B].
The plaintiff imported into the Island six sugar cane trailers for resale to sugar estates. The Comptroller of
Customs refused delivery to the importer unless the amount of duty which was disputed by the plaintiff was
first paid. The plaintiff paid the duties as stipulated to enable him to get delivery of the trailers. The plaintiff
contended that the sums so paid were not voluntary payments and claims the return of those sums and in
addition a declaration that the trailers were not dutiable. The question of the jurisdiction of the court to
entertain these proceedings was taken in limine having regard to the provisions of s 165 of the Trade Act,
1910 [B].
The Attorney-General is made the defendant by virtue of the provisions of the Crown Proceedings Act, 1955
[B].
Held: the court had no jurisdiction to entertain this matter having regard to the provisions of ss 57 and 165 of
the Trade Act, 1910 [B].
Action dismissed.
Cases referred to
Barraclough v Brown [1897] AC 615, 66 LJQB 672, 76 LT 797, 62 JP 275, 13 TLR 527, 8 Asp MLC 290, 2
Com Cas 249, HL, affg (1896), 65 LJQB 333, CA, 16 Digest 115, 147
Liverpool Marine Credit Co v Hunter (1868), 3 Ch App 479, 37 LJ Ch 386, 18 LT 749, 16 WR 1090, 3 Mar
LC, 12 Digest (repl) 107, 635
Sebel Products, Ltd v Customs & Excise Comrs [1949] Ch 409, [1949] 1 All ER 729, [1949] LJR 925, 65 TLR
207, 93 Sol Jo 198, 2nd Digest Supp
A-G v Milliwatt, Ltd [1948] 1 All ER 331, 92 Sol Jo 194, 2nd Digest Supp
Brocklebank, Ltd v R [1925] 1 KB 52, 94 LJKB 26, 132 LT 166, 40 TLR 869, 69 Sol Jo 105, 16 Asp MLC
415, CA, revsg, [1924] 1 KB 647, 42 Digest 995, 228
Francis v Yiewsley & West Drayton UDC [1957] 3 All ER 529, 101 Sol Jo 920, CA, 3rd Digest Supp
Pyx Granite Co, Ltd v Ministry of Housing and Local Government [1958] 1 All ER 625
Taylor v National Assistance Board [1957] 1 All ER 183, [1957] P 101, 101 Sol Jo 110, CA, revsg, [1956] 2
All ER 455, [1956] P 470, 101 Sol Jo 473, 3rd Digest Supp
Vine v National Dock Labour Board, [1956] 3 All ER 939, 101 Sol Jo 86, [1956] 2 Lloyds Rep 567, HL, 3rd
Digest Supp
Re Gilmores Application [1957] 1 All ER 796, CA, 3rd Digest Supp
Action
Action transferred to the Supreme Court of Barbados from the Court of Chancery. The facts appear in the
judgment.
WHA Hanschell (instructed by Cottle Catford & Co) for the plaintiff
The Attorney-General and D A Williams (instructed by The Queens Solicitor) (for the defendant)

73
HANSCHELL J. This action, filed in the Court of Chancery, is transferred to the Supreme Court on the
coming into operation of the Supreme Court of Judicature Act, 1956 [B].
The action is brought against the defendant as the representative of the Crown in respect of its right of
Government of the Island of Barbados.
By consent of both parties the pleadings were amended to include a sixth sugar cane trailer.
It is not disputed that the plaintiff imported into this Island six sugar cane trailers for resale to sugar
estates and landed and deposited them in the custody of the Comptroller, that a dispute arose between the
plaintiff and the Comptroller as to whether the said trailers were exigible to import duty and that the
Comptroller refused to deliver the said trailers unless the disputed duty demanded by him was first paid.
Nor is it disputed that the plaintiff made unsuccessful attempts with the Comptroller and the Ministry of

Trade, Commerce and Industry to have the dispute resolved on a basis acceptable to both sides without
prepayment of the disputed duty.
The plaintiff alleges that the said trailers were required and imported for the purpose of reaping and
manufacturing sugar and that they were to be and have since been exclusively used for that purpose. The
defendant denies this allegation.
It is further alleged by the plaintiff that he deposited the sums of $1,200 and $244.46 with the
Comptroller, on behalf of the Government of this Island, being the equivalent of the disputed import duty on
the said trailers and that the trailers were delivered from the custody of the Comptroller to the plaintiff.
It is further alleged by the plaintiff that the said payments of $1,200 and $244.46 were not voluntary
payments on the part of the plaintiff but were made by the plaintiff and accepted by the Comptroller, on
behalf of the Government of this Island, whilst the dispute was sub judice, and on the understanding and
implied agreement that the said payments and acceptance of the said sums of money were subject to
repayment by the defendant if court proceedings resulted in the plaintiffs favour; and that it was neither a
term nor condition of the said implied agreement that the said sums were either paid by the plaintiff or
received by the defendant on the footing that the defendant was to keep them in any event.
The defendant denies that the plaintiff deposited the said sums of money being the equivalent of the
disputed import duty on the said trailers but says that the plaintiff paid under protest the said sums being the
import duty on the said trailers and that the said trailers were thereupon delivered from the custody of the
Comptroller to the plaintiff.
The defendant denies that the said payments were not voluntary payments; denies that they were made
by the plaintiff and accepted by the Comptroller, on behalf of the Government of this Island, whilst the
above-mentioned dispute was sub judice and on the understanding and implied agreement that the said
payments and acceptance of the said sums were subject to repayment by the defendant if court proceedings
resulted in the plaintiffs favour and says that the said payments by the plaintiff to the Comptroller, on behalf
of the Government of this Island, were voluntary payments on the part of the plaintiff and that it was not the
mutual understanding nor an agreement implied or otherwise that the said payments were subject to
repayment by the Comptroller if court proceedings resulted in the plaintiffs favour or at all and says that at
the time of the said payments the dispute was not sub judice.
The plaintiff contends that he is not exigible to import duty in respect of the importation of the said
trailers, whereas the defendant contends that the plaintiff is so exigible.

74
The plaintiff alleges that the defendant has refused to return the said sums to the plaintiff, although so
requested by the plaintiff, and claims alternative declarations and order for the repayment of the said sums
by the defendant with interest.
The defendant has raised in limine the question of jurisdiction pleaded in paragraph 7 of his Answer and
submits that having regard to the provisions of s 165 of the Trade Act, 1910 [B], the court has no power to
determine the question whether or not the plaintiff is exigible to import duty in respect of the said trailers. In
the alternative, he submits that if the court holds that it has jurisdiction, in view of the provisions of s 165 and
of the fact that the plaintiff has referred this matter to the Governor-in-Executive Committee, the court could
not exercise its jurisdiction until the other authority has completed its jurisdiction.
In the course of argument I have been referred by both sides to the agreed bundle of correspondence
filed in this action and for the purposes of the first submission in limine it will be necessary to refer to them
and indeed to find certain facts necessary for the determination of this point; each side having based their
argument in law on this point, on the circumstances (as interpreted by each), in which the said payments
were made and the said trailers delivered from the custody of the Comptroller.
The defence has submitted that the facts are as follows:
The Comptroller demanded the payment of duty in the sums above-mentioned, the plaintiff contended
that he was not exigible to duty in respect of the trailers because, as he contended, the trailers were
importable free of duty: the Comptroller refused to deliver the said trailers without prepayment of the duty
demanded by him, the plaintiff attempted unsuccessfully with the Ministry of Trade to have the matter
resolved without prepayment of the disputed duty. That the plaintiff subsequently paid the duty as provided
by s 165 of the Trade Act, 1910 [B], whereupon the trailers were delivered from the custody of the
Comptroller to the plaintiff and the plaintiff requested that the dispute be referred to the Governor-inExecutive Committee as provided by the said s 165.
On these facts the defence have argued that the dispute as to whether the trailers are exigible to duty at
all is a dispute as to the proper amount of money payable in respect of duty on goods imported which are
the words of the said s 165, and that this dispute clearly comes within the provisions of that section. That
the first part of this section is obligatory and that having paid the duty under the first part you cannot recover
the same in the courts because the courts cannot give relief against express statutory provision, that the
legislature therefore in the second part of s 165 gave the right to recover the same and provided the remedy
by prescribing that the person from whom the duty is demanded may go to the Governor-in-Executive
Committee. That the statute has given a right and provided a remedy uno flatu and that the jurisdiction of

this court is therefore ousted under the rule in Barraclough v Brown ([1897] AC 615, 66 LJQB 672, 76 LT
797, 62 JP 275, 13 TLR 527, 8 Asp MLC 290, 2 Com Cas 249, HL, affg (1896), 65 LJQB 333, CA, 16 Digest
115, 147.).
The plaintiff has submitted that the facts are that he deposited the above-mentioned sums being the
equivalent of the disputed duty demanded by the Comptroller on the understanding and implied agreement
that they were subject to repayment if court proceedings resulted in the plaintiffs favour. He argues that
what he paid was not duty, that he made no payment under s 165 because that section does not apply to a
dispute such as this, but applies to disputes as to quantum only and not to questions of whether or not
goods are liable to duty at all. That the question here is one of law and that the Governor-in-Executive
Committee is an administrative body and is not competent to decide questions of law. He argues that the
section creates no new right and therefore the jurisdiction of this court is not ousted by the rule in
Barraclough v Brown ([1897] AC 615, 66 LJQB 672, 76 LT 797, 62 JP 275, 13 TLR 527, 8 Asp MLC 290, 2
Com Cas 249, HL, affg (1896), 65 LJQB 333, CA, 16 Digest 115, 147.). 75Further, that the jurisdiction of
superior courts is only ousted by express words or by necessary implication, and that there are no express
words or clear implication here that the legislature intended to oust the jurisdiction of the courts. That at the
most s 165 creates an alternative remedy and that in that case the plaintiff may come to the court instead of
availing himself of such alternative remedy.
Upon studying the agreed bundle of correspondence filed herein I have found that the plaintiff
approached the Ministry of Trade in connection with this dispute and that the Minister gave as his opinion
that the trailers were subject to duty. Subsequently counsel for the plaintiff wrote to the Comptroller inviting
further consideration of the matter by him in consultation with his legal advisers. In reply to this the
Comptroller wrote that in his opinion the trailers were liable to duty and in this letter he drew counsels
attention to s 165 of the Trade Act, 1910 [B], relating to the settlement of disputes as to customs duties....
This is followed by letter No 5 in the said bundle written by counsel for the plaintiff to the Comptroller. It is
dated 4 February 1958, and in it he states that the Attorney-General told him that in his view the procedure
laid down in s 165 should be followed. Counsel for the plaintiff states in this letter there seems to be little
alternative in the circumstances to compliance with your demand, and in a subsequent paragraph he states
that his client (the plaintiff) has no alternative but to pay the disputed duty or its equivalent. He requests that
the dispute be referred to the Governor-in-Executive Committee as provided by s 165 and states that the
plaintiff reserves the right to litigate the matter in court.
Now the Comptrollers demand was for the payment of duty, and it is not disputed that the Comptroller
refused to deliver the trailers unless the plaintiff first prepaid the duty demanded by him, and so it appears to
me that in view of the statement above referred to in letter No 5, compliance with your demand and no
alternative but to pay the disputed duty or its equivalent followed by a request for reference to the
Governor-in-Executive Committee under s 165, that this letter could only have been understood by the
Comptroller to be in respect of a payment of the duty demanded by him and a reference to the Governor-inExecutive Committee in accordance with the provisions of the said s 165. I am unable to see how the
inclusion of the words or its equivalent and the reservation by the plaintiff of his right to litigate the matter in
court could possibly be held to have affected the nature of the transaction, which, from the terms of the said
letter No 5 as a whole, is clearly a payment of the duty demanded by the Comptroller under s 165 and a
reference of the dispute to the Governor-in-Executive Committee under the said section. The Comptroller
was not authorised by law to accept any deposit of the equivalent of duty demanded by him; he had already
refused to deliver without prepayment of duty and had referred counsel for the plaintiff to s 165, which
section counsel referred to twice in his said letter.
Consequently I am unable to infer any understanding or imply any agreement on the part of the
Comptroller as pleaded by the plaintiff in paragraph 10 of the Bill of Complaint.
The terms used by the plaintiffs solicitors in paragraph 4 of letter No 9 dated 18 March 1958, with
reference to the payment of $1,200 on 4 February 1958, have not been denied in subsequent
correspondence by the Comptroller. These terms used more than a month after the payment was made,
cannot affect or in any way change the circumstances in which the Comptroller received the said sums on 4
February 1958, and where they are used in respect of the sixth trailer they are prefaced by a proposal by the
plaintiff to follow a course of procedure similar to that followed in respect of the five trailers first imported.
Where the Comptroller received the $1,200 as payment of duty under s 165 on 764 February 1958, as I am
satisfied that he did, a course of similar procedure to be followed in respect of the sixth trailer must in my
opinion be interpreted as a payment of duty under the section and a subsequent reference to the Governorin-Executive Committee, despite the use of the said terms, which, although possibly applicable to analogous
provisions of a United Kingdom statute, are foreign to the Trade Act, 1910, of this Island, under which the
Comptroller demanded the payment. Both the Attorney-General and the Comptroller referred counsel for
the plaintiff to s 165 of the Trade Act [B] previous to the payment of the $1,200 on 4 February 1958.
Counsel for the plaintiffs letter of 4 February 1958, clearly refers to payment of disputed duty under that
section. I do not find that the Comptroller treated the sixth trailer in any way differently to the previous five
trailers nor has it been so argued for the plaintiff. Furthermore, as a result of the payment made by the

plaintiff on 4 February 1958, and of the request contained in the letter of the same date written by counsel
for the plaintiff to the Comptroller, the Comptroller took steps to refer the dispute to the Governor-inExecutive Committee. This can only be interpreted as the plaintiff availing himself of the right and remedy
given in the second part of s 165 after having complied with the requirements of the first part of that section.
The section does not authorise the Comptroller to receive or the importer to make any deposit of the
equivalent of the duty demanded by the Comptroller. Similarly, in my view, letter No 9 in paragraphs 6 and 7
deals with a similar request by the plaintiff to refer the dispute in respect of this trailer to the Governor-inExecutive Committee although the solicitors for the plaintiff have spoken of it in the said paragraphs as a
reference to the Cabinet.
In construing any provision of a statute the court may look at the whole statute and in this case I think
that s 57 and s 165 of the Trade Act, 1910 [B], should be read together. These sections read as follows:
57. It shall be lawful for the Governor-in-Executive Committee, by order on the Treasurer, to refund
any duties, dues, fees, tonnage dues, rents, or other sums of money which may have been paid into
the Public Treasury under the provisions of this Act, or any other Act relating to trade and navigation, in
error or on demand by the Comptroller, or in excess of what was due, or as duty on articles not arriving
by the ship for which the duty paid warrants are passed.
165. If any dispute shall arise as to the proper amount of money payable in respect of duty on
goods imported, tonnage dues, harbour police or Careenage fees, or in respect of any fee or sum of
money payable under the provisions of the Acts of this Island relating to trade and navigation the
person from whom such duty, dues, fees or sums of money is demanded shall pay the same, but may
within one month after such payment refer the question in dispute to the Governor-in-Executive
Committee who shall have power to determine such question, and by order on the Treasurer refund to
such person any amount that may have been paid in excess of what should have been paid.
I now propose to deal with the question of whether s 165 of the Trade Act, 1910 [B], applies to the
dispute in this case. Firstly, I am satisfied that the words of this section are capable of application to a
question of whether or not goods are exigible to duty, and secondly, that the intention of the legislature was
to provide in this section for the settlement of all disputes as to duty.
In this section the Governor-in-Executive Committee is given power to determine the proper amount of
money payable in respect of duty on goods imported. No authority would be able to determine such a
question without reference to the statutory provision under which the duty is demanded, for duty is imposed
77 by statute; and determination of the proper amount cannot conceivably be done without examining the
statute to discover whether the goods in question are exigible to duty at all. Consequently in my view the
words proper amount of money payable as duty are not restricted to questions of quantum as pure
questions of fact; these words clearly apply to disputes which involve interpretation of statutory provisions.
The intention of the legislature in s 165 may clearly be seen in the fact that within this section the
legislature has given the Governor-in-Executive Committee power to refund money paid as duty under
express statutory provision, which is a power that the courts do not possess. In s 57 the legislature has
given the Governor-in-Executive Committee power to refund duty paid in error, again a wider power than the
courts possess. When these two sections are read together s 57 strengthens s 165 and the intention of the
legislature is even more clearly shown, that is, an intention to provide for the settlement of all disputes as to
duty, inter alia. For these reasons I find that s 165 applies to the present dispute.
In determining the question of ouster the cardinal principle is that the jurisdiction of superior courts is not
taken away except by express words or by necessary implication. There is also to be considered what may
be called the rule in Barraclough v Brown ([1897] AC 615, 66 LJQB 672, 76 LT 797, 62 JP 275, 13 TLR 527,
8 Asp MLC 290, 2 Com Cas 249, HL, affg (1896), 65 LJQB 333, CA, 16 Digest 115, 147.), which is that
where a statute in one breath confers a right and provides a remedy, then that is the only remedy available.
The rule in Barraclough v Brown ([1897] AC 615, 66 LJQB 672, 76 LT 797, 62 JP 275, 13 TLR 527, 8 Asp
MLC 290, 2 Com Cas 249, HL, affg (1896), 65 LJQB 333, CA, 16 Digest 115, 147.) will oust the jurisdiction
of the courts where there is the necessary implication, but this implication must be clear.
There is no jurisdiction to make a declaration on a subject relief in respect of which is beyond the
jurisdiction of the court (Barraclough v Brown ([1897] AC 615, 66 LJQB 672, 76 LT 797, 62 JP 275, 13 TLR
527, 8 Asp MLC 290, 2 Com Cas 249, HL, affg (1896), 65 LJQB 333, CA, 16 Digest 115, 147.); see also 22
HALSBURYS LAWS, 3rd Edn, p 748 and note (u)).
I understand the law to be that the rule in Barraclough v Brown ([1897] AC 615, 66 LJQB 672, 76 LT
797, 62 JP 275, 13 TLR 527, 8 Asp MLC 290, 2 Com Cas 249, HL, affg (1896), 65 LJQB 333, CA, 16 Digest
115, 147.) may oust the jurisdiction of this court in this matter if the provision in question has created a new
right, which did not exist before, and provided a remedy which is by clear implication the exclusive remedy
and where in the words of Lord Watson in the very case The right and the remedy are given uno flatu, and
the one cannot be dissociated from the other.

Statutes are to be construed according to the intent and meaning of their makers. In the said s 57 the
legislature has given the Governor-in-Executive Committee wider powers than the courts possess by
providing that the Governor-in-Executive Committee may refund duties paid in error, for the courts cannot
order repayment of money paid in mistake of law. In s 165 there is the express obligatory provision that
where a dispute shall arise as to the proper amount of money payable in respect of duty the person from
whom such duty is demanded shall pay the same. Where a person has paid in pursuance of this provision
he cannot recover the money in a court of law or equity, because it is money paid under express statutory
provision. Nor can he sue for it as money had and received to his use because it cannot be deemed an
involuntary payment, even though paid under protest, having been paid by compulsion of legal process.
Money paid as customs duty is not paid under duress (see Liverpool Marine Credit Co v Hunter ((1868), 3
Ch App 479, 37 LJ Ch 386, 18 LT 749, 16 WR 1090, 3 Mar LC, 12 Digest (repl) 107, 635.)).
Immediately following this obligatory provision the said s 165 gives the right to recover the disputed duty
so paid. This is a right available to the person paying only by its creation in the said section. The section
creates the right and in one breath provides the remedy.
I think that the clear implication of this section is to exclude any other remedy. I have come to this
conclusion after studying s 57 and s 165. When read together s 57 strengthens s 165 and the intention of
the legislature is clearly shown. I am satisfied that this construction of s 165 best carries into effect the
object of the legislature and conforms with the rest of the statute.

78
In coming to this conclusion I have carefully considered the cases to which I have been referred.
The case of Sebel Products, Ltd v Customs & Excise Comrs ([1949] Ch 409, [1949] 1 All ER 729, [1949]
LJR 925, 65 TLR 207, 93 Sol Jo 198, 2nd Digest Supp.) was a claim in the Chancery Division for a
declaration which was granted. They claimed a declaration that one of their products was exempt from
purchase tax. The tax was imposed by the Finance (No 2) Act, 1940 [UK], part 5 (21 HALSBURYS
STATUTES, 2nd Edn, 1246). That Act contains no provision for settlement of disputes as to purchase tax,
and the tax paid in that case was not in pursuance of any statutory provision requiring payment of the tax
where a dispute had arisen; therefore the general law was applicable there. Furthermore the payment was
made whilst the matter was sub judice on the implied agreement that it was subject to repayment if the
plaintiff succeeded in the action. In the present case the payment was made in pursuance of express
statutory provision, it was made at a time when the matter was not sub judice, and there was no agreement
for repayment implied or otherwise. Furthermore in Sebels case (Sebel Products, Ltd v Customs & Excise
Comrs [1949] Ch 409, [1949] 1 All ER 729, [1949] LJR 925, 65 TLR 207, 93 Sol Jo 198, 2nd Digest Supp)
the question of ouster was not raised.
A-G v Milliwatt, Ltd ([1948] 1 All ER 331, 92 Sol Jo 194, 2nd Digest Supp.) is also in respect of purchase
tax. The action was for the recovery of purchase tax. In this matter the court decided inter alia that where it
is a question of what goods are chargeable it must be decided by a court of law. As I understood the
argument, counsel for the plaintiff referred me, in connection with this case, to 28 HALSBURYS LAWS, 2nd
Edn, p 315, paragraph 587, Disputes as to the value of any goods by reference to which duties of customs
are charged are referred to the arbitration of a referee appointed by the Lord Chancellor and the decision of
such referee is final. Note (k) shows that this is provided by the Import Duties Act, 1932 [UK], s 16, which
applies to all disputes as to value under any Act by the Finance Act, 1935 [UK].
It appears here that a dispute as to value does not properly include a dispute as to what goods are
chargeable, hence the former only may be dealt with by the statutory authority and the latter falls for
decision by a court of law.
In the present case the statute by clear implication gives the Governor-in-Executive committee power to
determine the question at issue by giving it the power to determine disputes as to the proper amount of
money payable in respect of duty.
Brocklebank, Ltd v R ([1925] 1 KB 52, 94 LJKB 26, 132 LT 166, 40 TLR 869, 69 Sol Jo 105, 16 Asp
MLC 415, CA, revsg, [1924] 1 KB 647, 42 Digest 995, 228.) was a case in which the Shipping Controller,
purporting to act under the Defence of the Realm Regulations [UK], required as a condition of a licence the
payment of a percentage of purchase money to the Ministry of Shipping. It was held that the imposition of
this condition was illegal and that the payment was not a voluntary payment. It differs from the present case
in that here the payment is expressly required by statute and therefore cannot be deemed involuntary even
though paid under protest.
Francis v Yiewsley & West Drayton UDC ([1957] 3 All ER 529, 101 Sol Jo 920, CA, 3rd Digest Supp.)
was an action for a declaration and I am referred to it on behalf of the plaintiff but I do not think that it can be
applied here because the relevant point turns on the decision that the provisions of the statute barred
proceedings under a particular subsection but did not operate as a general bar.
Pyx Granite Co, Ltd v Ministry of Housing and Local Government ([1958] 1 All ER 625.)is a case which
was decided by the Court of Appeal, and leave was granted to appeal to the House of Lords. Up to the
present I am not aware that the House of Lords has decided the appeal. In this case Barraclough v Brown
([1897] AC 615, 66 LJQB 672, 76 LT 797, 62 JP 275, 13 TLR 527, 8 Asp MLC 290, 2 Com Cas 249, HL, affg

(1896), 65 LJQB 333, CA, 16 Digest 115, 147.) was distinguished and Francis v Yiewsley & West Drayton
UDC ([1957] 3 All ER 529, 101 Sol Jo 920, CA, 3rd Digest Supp.) applied. In this case it was held that in
Barraclough v Brown ([1897] AC 615, 66 LJQB 672, 76 LT 797, 62 JP 275, 13 TLR 527, 8 Asp MLC 290, 2
Com Cas 249, HL, affg (1896), 65 LJQB 333, CA, 16 Digest 115, 147.) there was clear implication which
ousted the jurisdiction of the Superior Court and that in the Pyx case (Pyx Granite Co, Ltd v Ministry of
Housing and Local Government [1958] 1 All ER 625.) there was nothing to bar recourse to a declaration,
that the Town and Country Planning Act, 1947 [UK], did not by express words or necessary implication oust
the jurisdiction of the court. Just as each case depends upon its own peculiar facts so in cases of this 79
nature this question will depend upon the particular statute under construction. Neither in Francis v
Yiewsley & West Drayton UDC ([1957] 3 All ER 529, 101 Sol Jo 920, CA, 3rd Digest Supp.) nor in the Pyx
case (Pyx Granite Co, Ltd v Ministry of Housing and Local Government [1958] 1 All ER 625.) were there
express words or necessary implication in the statute which barred recourse to a declaration. In the Pyx
case (Pyx Granite Co, Ltd v Ministry of Housing and Local Government [1958] 1 All ER 625.) in the judgment
of DENNING, LJ, he says ([1958] 1 All ER at p 630): I find nothing in the statute to bar recourse to a
declaration. In the same case in the judgment of MORRIS, LJ, at p 645, he says, in my judgment, there is
no language in the Act of 1947 which debars the company from seeking the ruling of the High Court. In the
present case before me I am satisfied that the language of the Trade Act, 1910 [B], clearly implies the
exclusion of any remedy other than that provided in the said section and consequently that this court has no
jurisdiction to decide this dispute or to grant a declaration of right as claimed. The cases Taylor v National
Assistance Board ([1957] 1 All ER 183, [1957] P 101, 101 Sol Jo 110, CA, revsg, [1956] 2 All ER 455, [1956]
P 470, 101 Sol Jo 473, 3rd Digest Supp.), Vine v National Dock Labour Board ([1956] 3 All ER 939, 101 Sol
Jo 86, [1956] 2 Lloyds Rep 567, HL, 3rd Digest Supp.) and Re Gilmores Application ([1957] 1 All ER 796,
CA, 3rd Digest Supp.) are authorities of the exercise of the corrective or disciplinary jurisdiction of the
Superior Court and in my judgment they are not applicable to this question at present before me.
For the reasons given this action is dismissed.
Action dismissed.

(1959) 1 WIR 80

Atherley v Hinkson And Marshall

SUPREME COURT OF BARBADOSTRIAL DIVISION
HANSCHELL J
10 APRIL 1959

Negligence Collision between motor car and cyclist Contributory negligence Damages Contribution.
Between 6.30 pm and 7 pm on 19 December 1956, the plaintiff was riding his bicycle along the public
highway on his left and proper side. At the same time the defendant Hinkson was driving a motor car on the
same highway approaching the plaintiff and on his left and proper side. The defendant Marshall, the owner
of the car, was a passenger in the car. An unknown cyclist came from the pavement on Hinksons left,
mounted his cycle and rode across and in front of the car driven by Hinkson, causing Hinkson to pull over to
his right to avoid striking this unknown cyclist. The car collided with this cyclist and continued on towards
the opposite side of the road and collided with the plaintiff cyclist. The defendants pleaded contributory
negligence and also inevitable accident.
Held: (1) the collision was due to the negligence of the driver of the car,
(2) it was not due to inevitable accident,
(3) the plaintiff was blameworthy and damages should be reduced by 10%.
Judgment for the plaintiff.
Cases referred to:
Daly v Liverpool Corpn [1939] 2 All ER 142, Digest Supp
A C Billings & Sons, Ltd v Riden [1957] 3 All ER 1, 101 Sol Jo 645, HL, 3rd Digest Supp
Rickman v Railway Executive (1950), 83 LILR 409

Action.
Action The facts appear in the judgment of the court.
G B Niles (instructed by Hutchinson & Banfield) for the appellant/plaintiff
A K Walcott for the respondent/defendant

80
HANSCHELL J. This is an action for damages brought by the plaintiff against the defendants in respect of a
collision on the highway.
The plaintiff alleges negligence on the part of the defendant Hinkson and that he was at all material
times acting as the servant or agent of the defendant Joyce Marshall.
In spite of the denial in the pleadings I have been informed at the trial that the defendants do not dispute
that the defendant Hinkson was the driver of the car, nor that the defendant Marshall was the owner of the
car, nor that the relationship of mistress and servant existed between Marshall and Hinkson.
Where the plaintiff has alleged negligence on the part of the defendant Hinkson, the defendants deny
this and say that if any accident did happen to the plaintiff as is alleged, it was caused or contributed to by
the negligence of the plaintiff.
In the further alternative, the defendants say that the plaintiffs injuries were the result of an inevitable
accident.
The particulars of negligence as alleged by both sides are set out in the pleadings. From consideration
of the evidence as a whole I have found the following facts.
On 19 December 1956, at about 6.30 to 7 pm the plaintiff was riding his bicycle along Baxters Road in
the direction of Barbarees Hill on his left and proper side and at a speed of 10 miles per hour. At the same
time and slightly more than 34 yards away the two defendants were approaching the plaintiff on the same
road but in the opposite direction in a motor car on their left and proper side and at a speed of between 15
and 20 miles per hour. The car was a right-hand drive and was being driven by defendant Hinkson the
servant of defendant Marshall, the owner of the car, who was sitting on Hinksons left. Hinkson was at that
time acting in the course of his employment.
At this point and time, when dusk had fallen and street lights were burning and the lights of Marshalls
car were on, an unknown person came from the pavement to Hinksons left, mounted a bicycle and rode
across in front of the car driven by Hinkson, at about 4 or 5 feet in front of the car. Immediately on seeing
this cyclist Hinkson pulled the car hard over to his right in order to avoid collision with the cyclist. In spite of
this a collision occurred between the left front fender of the car and the cyclist which broke the left front light
of the car. At the time of this collision the car was facing diagonally across the road to its right-hand side and
it continued in this direction until it reached the opposite side of the road when it swerved to its left and again
to its right and mounted the pavement with its right front wheel and travelled on the pavement with this
wheel for about 15 feet and then came back on to the road and collided with the plaintiff. The plaintiff saw
the car collide with the first cyclist and then approach him on his (the plaintiffs) side of the road at a speed
which he considered fast and which he has estimated at 30 to 35 miles per hour. The plaintiff did not apply
his brakes and get off his cycle until he saw the car mount the pavement not more than about 18 to 20 feet
in front of him. The defendant Hinkson did not apply his brakes until he collided with the plaintiff, and then
he stopped within a few feet after this second collision. The defendant Hinkson did not see the plaintiff
before he collided with him.
In these circumstances the first cyclist, the defendant Hinkson and the plaintiff each had a duty to move
with due care. Clearly the first cyclist, whose name is unknown and who is no party to this action, was
negligent.
In deciding whether Hinkson was negligent the question to be answered is whether he acted reasonably
in all the circumstances of the case. In answering this question the test is what action the ordinary or
reasonable man would take in such an emergency.
As stated in SALMOND ON TORTS (12th Edn) at p 412, the law does not recognise different standards
of care or different degrees of negligence in 81 different cases. The sole standard is the care that would be
shown in the circumstances by a reasonably careful man, and the sole form of negligence is a failure to use
this amount of care.
Now the amount of care which the reasonable man will use will be different in different cases, and in the
case of a driver of a motor car a very high standard of skill and care is demanded, for he undertakes an
extremely difficult task, involving extremely dangerous consequences for other persons (see Daly v
Liverpool Corpn ([1939] 2 All ER 142, Digest Supp.)).
So also, in considering what a reasonable person would realise or would do in a particular situation,
regard must be had to human nature, and if in a particular situation the great majority of people would have
behaved in one way it would not be right to say that a reasonable man would or should have behaved in a
different way (see AC Billings & Sons, Ltd v Riden ([1957] 3 All ER 1, 101 Sol Jo 645, HL, 3rd Digest
Supp.)).

In my view the ordinary or reasonable man, driving a motor car in the circumstances of this case and
faced with the emergency created by the negligence of the first cyclist, as the defendant Hinkson was, would
have applied his brakes.
The execution of a swerve unaccompanied by the application of brakes is not to be considered
reasonable action in this emergency. Furthermore the emergency does not last for ever, in the words of
ASQUITH, L J, in Rickman v Railway Executive ((1950), 83 LILR 409.) as quoted in SALMOND ON TORTS
(12th Edn) at p 452:
After an interval, be it short or long according to the circumstances, it subsides....
In the present case the defendant Hinkson, travelling at 15 to 20 miles per hour, swerved in order to
avoid the first cyclist, collided with this cyclist and continued on without applying his brakes until he collided
with the plaintiff at a distance of about 30 yards from the first collision. He did so with his lights on (for the
plaintiff saw the first collision by the lights of Hinksons car and Hinkson examined the plaintiffs bicycle by
the reflection of the same lights) and says that he lost control of the car and did not remember his brakes.
At the speed at which Hinkson was travelling when confronted with the emergency and at the distance
he then was from the plaintiff it must be held that these are circumstances in which the emergency would
have subsided at such a time as to allow him thereafter sufficient time and opportunity to apply his brakes
and stop before colliding with the plaintiff, to whom he owed a duty to move with due care. In such
circumstances it would be unreasonable for the ordinary man to lose control and not remember his brakes.
The defendant Hinkson failed to apply his brakes in the emergency and failed to do so after the
emergency had subsided; he also failed to keep a proper look-out, in that he did not see the plaintiff
although he approached him from 30 yards distant with his car lights on. In each instance he was negligent.
I am not satisfied that this was an inevitable accident. The cause of this accident to the plaintiff was the
negligence of the first cyclist and of the defendant Hinkson. I do not find that the plaintiff in any way caused
the accident. However I think that the plaintiff failed to take reasonable care for his own safety in that he did
not apply his brakes in sufficient time and waited to do so when the car was about 15 to 20 feet away,
although he was 4 feet from his left side. A reasonable man would have stopped when he saw the car at 30
yards distant approaching him at 30 miles per hour.
As a result of this collision the plaintiff sustained a crack fracture of the right lateral malleolus as well as
minor abrasions of other parts of the body. He has suffered no permanent disability and it appears to me
that he is now completely recovered. He has suffered pain, which was severe for the first few days followed
by discomfort when the plaster was applied. After removal of the plaster his leg swelled and during
rehabilitation he again suffered pain to a less degree than he did at first. When he saw Dr Branch on 20
March 1957, he was still 82 suffering slight pain. At that time Dr Branch observed slight swelling. On 23
January 1958, Dr Branch saw him again and noted Well, only occasional slight pain. That was the last
date on which Dr Branch saw him. Dr Ward saw the plaintiff on 29 March 1958, and found that he suffered
pain in his right ankle on movement. Dr Ward saw him again on 1 October 1958, and found that the plaintiff
still suffered pain to a lesser extent.
From the evidence which gives the history of the plaintiffs recovery from this fracture I am satisfied that
he has suffered considerable pain and that his pain persisted intermittently for longer than the usual case in
such injury.
As well as the personal injuries suffered by the plaintiff his bicycle was extensively damaged and cannot
be satisfactorily repaired. Before the accident it was in good condition and was worth about $8000. I
believe the witness Leon White although I have not seen the bicycle. I do not accept the evidence for the
defence that only the front wheel was bent. I am not satisfied that the damaged vehicle has any value now.
I am not satisfied with the evidence of expenses incurred by the plaintiff in travelling or in the purchase
of dressings and ointments. I do not find that these heads of expenses are proved. The plaintiff is not now
claiming any loss of earnings.
On the question of damages I think that the proper amount in respect of the personal injuries, pain and
suffering and loss to the plaintiff should be $1,160.00 of which $80.00 is special damages.
As I have already stated, it was the negligence or fault of the first cyclist and of the defendant Hinkson
which caused the accident as a result of which the plaintiff suffered damage. However, although the plaintiff
had no share in causing the accident his failure to take due care for his own safety must be taken into
consideration as blameworthiness and the damages reduced accordingly. I think it just and equitable that
the sum of $1,160.00 should be reduced by one-tenth having regard to the claimants share in the
responsibility for the damage.
I give judgment for the plaintiff against both defendants in the sum of $1,044.00 and the plaintiffs costs
to be taxed.
Judgment for the plaintiff.

J S B Dear (instructed by Browne & Chapman) for the plaintiff

W H A Hanschell (instructed by Nicholls & Co) for the defendants

(1959) 1 WIR 83

Alleyne v Lynch
SUPREME COURT OF BARBADOSAPPELLATE JURISDICTION
STOBY CJ AND FIELD J
30 JANUARY 1959

Road Traffic Failure to produce driving licence Motor Vehicles and Road Traffic Act, 1937 [B], s 39.
The appellant was convicted by a Magistrate for failing to produce his driving licence when required to do so
by a police constable in uniform, contrary to s 39 of the Motor Vehicles and Road Traffic Act, 1937 [B].
There was no evidence on record that the police constable was in uniform.
Held: the conviction must be quashed because it was essential to the offence to prove that the constable
was in uniform.
Appeal allowed.
No cases referred to

83
Appeal
Appeal to Full Court of the Supreme Court from the decision of a Magistrate. The appellant was convicted
by a Magistrate for failing to produce his driving licence for examination when required so to do by a police
constable in uniform. No evidence that police constable was in uniform.
J E T Brancker for the appellant
D A Williams for the respondent
STOBY CJ giving the reasons for judgment: The appellant was convicted by a magistrate of District A for
failing to produce his driving licence for examination when required to do so by a police constable in uniform,
contrary to the provisions of s 39 of the Motor Vehicles and Road Traffic Act, 1937 [B].
In the Magistrates Court, Police Constable Byron Clarke stated on oath that he was attached to the
Traffic Branch of the Central Police Station and was on duty in Westbury Road directing traffic on 13 January
1958. The appellant was driving a motor car along Westbury Road and Police Constable Clarke signalled to
him to stop. He did not do so immediately but passed the policeman and stopped twenty yards away.
The appellant said in evidence that he did not see when the policeman signalled him to stop but as
soon as it was drawn to his attention that he was being stopped he did so.
The Magistrate did not accept his evidence and convicted him.
The sole point argued in the appeal was that there was no evidence that the police constable was in
uniform. Counsel for the Crown agreed with the submission and the appeal was allowed and the conviction
quashed. Section 39 of the Motor Vehicles and Road Traffic Act, 1937 [B], states that
The driver of a motor vehicle on a road shall on being so required by any police constable in
uniform, produce his driving licence for examination....
It is therefore essential to prove that the police constable who stopped the appellant was in uniform and
as there was no such evidence on the record the court was compelled to allow the appeal.
Appeal allowed.

(1959) 1 WIR 84

Marks v Central Foundry Ltd

SUPREME COURT OF BARBADOSTRIAL DIVISION
FIELD J
31 MARCH 1959

Contract Repairs to motor vessel Deposit to cover repairs Detention of vessel after repairs
completed Lien Liability of dockowners Counterclaim.
In August 1956, the plaintiff docked his vessel the Lady Steadfast with the defendant company for the
purpose of having repairs done. After discussions between the plaintiff and the general manager of the
company, the manager agreed to carry out repairs deemed necessary by the plaintiff provided the cost of
such repairs did not exceed the sum deposited by plaintiff as stipulated by the manager. The repairs
exceeded this sum and on completion of the work the company refused to lower the vessel into the water
and deliver it to the plaintiff unless the full costs of repairs were paid. The plaintiff refused to pay and filed
this action against the company claiming (1) delivery of the vessel,

84
(2) damages for loss of earnings and (3) general damages. The vessel was lowered into the water and
delivered eight days later. The company counterclaimed for the costs of repairs which exceeded the sum
deposited, damages for maintenance of the vessel after repairs were completed and for loss of use of the
dock for five days including certain incidental expenses.
Held: (1) that the company was entitled to the full cost of the repairs notwithstanding that such cost
exceeded the sum deposited by the plaintiff and in such circumstances was entitled to exercise its lien in
respect of such repairs;
(2) that the expenses incurred in keeping the vessel on dock arising out of the companys exercise of its
right of lien were not recoverable by the company as special damages;
(3) that the loss of the use of the dock for other work is not recoverable as this would amount to a charge by
the company for keeping the vessel for its own benefit.
Judgment for the defendant on claim and counterclaim.
Case referred to
Somes v British Empire Shipping Co (1860), 8 HL Cas 338, 30 LJQB 229, 2 LT 547, 6 Jur NS 761, 8 WR
707, 11 ER 459, HL, affg sc sub nom British Empire Shipping Co v Somes (1858), EB & E 353, Ex Ch,
32 Digest 253, 390
E W Barrow (instructed by Haynes & Griffith) for the plaintiff
W W Reece (since deceased) J S B Dear (instructed by Cottle, Catford & Co) for the defendant
FIELD J. The plaintiff is the master and part-owner of the Motor Vessel Lady Steadfast, of 56 tons,
registered at Kingstown, St Vincent. The defendant is a company incorporated in this Island carrying on the
business of general engineers and foundry and they also operate a dry dock.
In July 1956, the plaintiff brought the Lady Steadfast to Barbados for the purpose of having repairs done
by the defendant company. The plaintiff interviewed the general manager of the company, Mr Withmall, and
was given a tentative date in August for the docking of the vessel. At this interview the general manager
reminded the plaintiff of an outstanding debt of $149.18 owed by the plaintiff to the company in respect of a
previous docking, and informed him that he would have to get some responsible person to give an unlimited
guarantee for the payment of the cost of the repairs and docking now to be undertaken. This was further
communicated to the plaintiff by a letter dated 1 August. In compliance with this stipulation the plaintiff paid
into the company the sum of $1,000 as he was unable to get any person to give the required guarantee.
The vessel was docked on 6 August or 7. After inspection the general manager wrote to the plaintiff on 10
August setting out the repairs considered necessary by the company and giving the cost as $1,800 and
telling the plaintiff that a further sum of $950 would have to be deposited to cover the approximate cost of
these repairs. The plaintiff was not in a position to undertake the repairs as listed by the company and so
informed the general manager verbally on 10 August intimating at the same time that he only required such
repairs as would render the vessel seaworthy. The general manager accepted this position and this
arrangement was confirmed by a second letter dated 10 August. The repair work was commenced. The
plaintiff remained on board and was present daily, inspecting and directing the work and signing the

necessary orders for materials and the daily wage sheets. The general repairs were completed on the 17th,
which was a Friday. The company then costed the work which came to $1,071.59, being some $221 in
excess of the sum then remaining on deposit in favour of the plaintiff, and so informed the plaintiff by letter
dated 17 August. The plaintiff was also required by that letter to pay that amount before the vessel was
lowered into the water. The receipt of that letter was the first indication which the plaintiff had that the 85
cost of the repairs would exceed the amount on deposit. Certain repairs to the rudder had not been
completed in sufficient time on the 17th to permit the vessel to be lowered into the water on that day, but it
was expected that lowering could take place on the 18th. On the 18th the plaintiff approached the dock
foreman to ascertain when the vessel would be lowered that day and was told by the foreman that he was
awaiting orders from the general manager for lowering. The plaintiff did not go to see the general manager.
On the 18th the dock was got ready to lower the vessel and the plaintiff was sent for but could not be found.
The bill for the repairs had been delivered to the plaintiff but was returned, but not the letter. The plaintiff did
not get in touch with the general manager who had made several unsuccessful attempts to locate him. As
the bill was not paid the vessel remained on dock. It was not until the 22nd that the general manager found
the plaintiff on board the motor vessel William Johnson about to sail to Trinidad. The general manager and
the plaintiff discussed the contents of the letter of the 17th and the plaintiff told the general manager that he
was surprised at its contents as he did not think he would be treated that way and complained of such
treatment after the many years he had dealt with the Central Foundry to be handled in that way. He
concluded by saying that he had nothing further to say except that the general manager would be hearing
from his solicitors. In reply to the general managers query as to what was to be done about the vessel
particularly having regard to the fact that the dock was required for other work, the plaintiff said he was
nothing more to do with the vessel and that it was now the property of the defendant company. The general
manager asked if he was to understand that he could lower the vessel and was told by the plaintiff that he
could do as he liked but if the vessel was not there on Saturday, 25 August when he returned from Trinidad,
then there would be a lot of trouble. The general manager suggested to the plaintiff that he could authorise
the mate to receive the vessel, but this was not accepted. It was also drawn to the attention of the plaintiff
that this was hurricane season and it might become necessary to lower the ship at short notice. This
reminder did not impress the plaintiff. The plaintiff proceeded to Trinidad. He eventually cabled and wrote to
the mate authorising him to take delivery and the vessel was accordingly lowered and delivered on 25
August.
After the refusal by the plaintiff to take delivery of the vessel on the 22nd the general manager
considered it expedient to take certain steps to safeguard the vessel by insurance and by putting a
watchman on board.
The plaintiff had instituted legal proceedings and the writ in this action was issued on 20 August and
served on the company on 22 August subsequent to the interview between the plaintiff and general manager
on board the William Johnson. The plaintiff claims:
(a) the return of the vessel or its value,
(b) special damages for loss of earnings, and
(c) general damages.
The company has counterclaimed for the cost of the repairs in excess of the sum deposited, special
damages in respect of certain work done and labour employed on maintaining the vessel whilst on dock
after the 17th, including insurance and expenses for lowering and repainting the bottom. In addition the
company claims for loss of earnings of the dock for five days. Whilst denying liability generally they also
claimed their right of lien in respect of repairs done to the vessel. The claim by the plaintiff for the return of
the vessel or its value no longer arises as the vessel was delivered by the defendant and received by the
plaintiff on 25 August.
By his counsel during the course of the proceedings the plaintiff admitted that repairs were carried out
to the amount stated by the company but has always denied any liability in respect thereof. The plaintiff
contends that the letters of the 1st and two of the 10th August constitute a complete contract between 86 the
parties to do specific work for a stipulated sum, that is to say, a sum not in excess of the balance of the
deposit; and further that there was no authority express or implied given to the company to do any repairs
costing more than the sum on deposit and further that if the letters do not amount to a complete contract
between the parties there was no implied agreement by which the plaintiff can be held liable for the amount
in excess of the deposit. In support of this the plaintiff points out that throughout the interviews between the
plaintiff and the general manager it was impressed upon the plaintiff that no work would be done unless the
cost was guaranteed by a responsible person or deposit made and that the company would not carry out
repairs considered necessary by the plaintiff in excess of the deposit. The plaintiff particularly relies on the
second letter of 10 August and having regard to its importance in the case it can be conveniently reproduced
and is as follows:
Dear Sir,

This serves to confirm the conversation which you had with the writer this morning when the
subject-matter of our previous letter of even date was discussed.
As you have explained that you are unable to meet the financial obligations involved in carrying out
a thorough repair to the Lady Steadfast, we are prepared to proceed with what repairs you deem
necessary, and to issue instructions to the Dock Master to carry out repairs as directed by you
provided these fall within the cost covered by your deposit; and also with the distinct understanding
that we in no way bind ourselves responsible should the vessel leak after being undocked.
The plaintiff contends that having regard to the interviews and subsequent letters written by the general
manager, it is evident that the plaintiff was forced to accept these conditions and having limited themselves
to do only such repairs as would be covered by the deposit, there was no authority in them to do any repairs
in excess of that sum; that having regard to the fact that the company was daily in possession of the costing
figures for the repairs the plaintiff was entitled to rely on that knowledge; and, not having heard from the
company on any day or at any time until the repairs were completed, he was entitled to assume that the cost
was within the stipulated amount not to be exceeded.
On the other hand the company argues that the second letter of 10 August was written after the plaintiff
was unable to meet the cost of a thorough repair job and his insistence that with his many years of
experience as a shipwright he was satisfied that the repairs which he wanted could be done for less than the
deposit: and in effect he was being told go ahead with such repairs as you deem necessary but do not
exceed $852.
I do not consider that by the terms of that letter the company intended to bind itself from recovering for
repairs deemed necessary by the plaintiff if the cost of those repairs should exceed the sum on deposit. The
more reasonable interpretation seems to be that the company was making it clear to the plaintiff that it would
not hold itself responsible for carrying out such repairs unless those repairs were kept within the limit of the
deposit. In other words if the company so desired, it could when the limit was reached have said to the
plaintiff, We are not doing any more repairs until more money is deposited. Perhaps in the circumstances
this would have been a better course to have pursued. It is true that the company kept the costing figures
but the plaintiff was well aware of the terms on which the repairs were being done and it was as much to his
own interest to ascertain the daily or other periodic cost as it was for the defendant to keep him informed.
Perhaps the assertion by the plaintiff that when the work was completed the company would owe him and
he would not owe the company led him to be less prudent than he would normally have been. In such
circumstances I consider the plaintiff was liable to the company for the 87 full cost of the repairs including
the sum in excess of the deposit and accordingly were justified in refusing to deliver the vessel until that debt
for the repairs was paid, for it is well established that a lien arises in such cases. I would add that a more
prudent person would have acknowledged the second letter of the 10th and paid or made arrangements to
pay the balance under protest, take delivery of the vessel and then consider what legal steps, if any, could
properly be taken to recover back the sum so paid.
Whether the company continued to exercise its lien up to the date of delivery, viz. 25 August is not clear
from the evidence. It seems that the general manager was willing to deliver the ship on the 20th (Monday)
but was unable to find the plaintiff to take delivery. In any case when the plaintiff was found he was bound
for Trinidad and refused to take delivery or authorise the mate to do so. Indeed he had already caused legal
proceedings to be instituted. In such an event, it cannot be said that the defendant company refused
delivery of the vessel.
For these reasons the plaintiffs claim in respect of special and general damages must fail.
It now remains to deal with the counterclaim. Somes v British Empire Shipping Co ((1860), 8 HL Cas
338, 30 LJQB 229, 2 LT 547, 6 Jur NS 761, 8 WR 707, 11 ER 459, HL, affg sc sub nom British Empire
Shipping Co v Somes (1858), EB & E 353, Ex Ch, 32 Digest 253, 390.) is authority for holding that when a
repairer of an article elects to exercise his right of lien for the cost of repairs, normal expenses incurred in so
keeping the article cannot be recovered against the owner, nor can loss of income be recovered for that
would be a charge for keeping it for his own benefit. Therefore the cost of insurance for 10 days, cables,
watching and loss of use of dock and 5 days dues are not recoverable. I do not consider that it was
necessary to repaint the bottom of the vessel. It is generally conceded that a vessel should go into the
water within 48 hours after anti-fouling paint is applied so as to get the best results from this type of paint. In
this instance the first bottom paint had been mixed with tar at the plaintiffs request and it was due to his
default that the vessel did not go into water within a reasonable time after painting. So why should he
benefit from a second painting? I am afraid this was a gratuity from the company. Neither did it seem
necessary to employ further men to clean and these expenses will not be allowed. The only amounts of the
special damage which are properly recoverable are those for shifting 3 sections $15.18 and furnishing crew
for taking vessel off dock and berthing in Careenage $120.00. Accordingly there will be judgment for the
defendant company for the sum of $356.25 (three hundred and fifty-six dollars and twenty-five cents).
Judgment for the defendant on claim and counterclaim.

88
(1959) 1 WIR 89

Worrell v Worrell
SUPREME COURT OF BARBADOSAPPELLATE JURISDICTION
FIELD J
24 FEBRUARY 1959

Recovery of possession Land Action by administrator Tenancy at will Extinguishment of right to

recover possession Interpretation by appellate court Limitation and Prescription Act, 1891 [B].
The plaintiff as administrator of the estate of the late John Richard Worrell claimed possession of a parcel of
land being part of the estate of the said John Richard Worrell but now in the possession of Ursula Worrell.
John Richard Worrell died in 1946. In 1939 he had permitted his son Simeon Worrell with his wife Ursula to
put their house on the spot of land now claimed without payment of rent. Simeon and his wife lived on the
spot from 1939. Simeon died in 1955 and the widow Ursula continued in possession of the land until action
brought.
On the facts which were sufficiently set out in the trial judges reasons the judge held that Simeon had
entered under circumstances which created a tenancy at will and the Limitation and Prescription Act, 1891
[B], would debar the plaintiff from recovery of possession. Against this decision the plaintiff appealed.
Held on appeal: (1) Where the prescribed period under the Limitation and Prescription Act, 1891 [B], has run
in favour of the person in possession not only is the action barred but the right to recover possession is
extinguished;
(2) the fact that the present administrator of the estate of the late John Richard Worrell was not sui juris at
the date of the death of the said John Richard Worrell, did not prevent time continuing to run in favour of the
person in possession and against the owner;
(3) the plaintiff as administrator of the estate of the late John Richard Worrell has no right to recover
possession of the land in his capacity of such administrator.
Appeal dismissed.
No cases referred to
Appeal
Appeal from a decision of the Assistant Court of Appeal in its original equitable jurisdiction. The trial judges
reasons were:
1. The plaintiff is seeking to recover possession of a house spot of land which is situate at Rock Hall in
the parish of Saint Andrew and which allegedly forms part of the estate of John Richard Worrell, deceased,
of which estate the plaintiff is the qualified administrator.
2. That this land originally belonged to John Richard Worrell is not denied, nor is it denied that he put
the defendant and her husband, the late Simeon Worrell, who was also his son, there in 1939. The dispute
is over the terms on which he put them there and over the defendants alleged agreement, after Simeons
death in 1955, to pay the plaintiff rent.
3. To take the second point first, since it is the one on which the plaintiff relies in his evidence. The
circumstances in which he says she agreed to pay him rent seem to be highly improbable. It is strange, too,
that his uncle, Oscar Morris, in whose presence this agreement is alleged to have been made, and whom he
took to defendant for a special purpose in connection with the land, can only say that rent was mentioned
but that he does not remember the details.
4. The defendants case, on the other hand, is that she and her husband were put there in 1939 to live
rent free by her husbands father and that she has continued to live there rent free ever since. I saw no
reason to doubt her.
5. The full terms on which the husbands father put them in must be gathered from her evidence.
Briefly, what she says is that upon it becoming 89 necessary for Simeon to move from where he was then

living, she heard his father state, against his own interest, that he had told Simeon to measure off a spot on
which to put his house, a spot which he could have rent free as long as he (Simeon) lived; that Simeon had
therefore moved his house on to the spot in question, and that she also heard his father say that he had
already given his other children a house spot each.
6. There seems to be nothing improbable about this. What counsel for the plaintiff has argued,
however, is that taken in its entirety, the defendants evidence on this point is suggestive of a family
arrangement which, as in Cobb v Layne ([1952] 1 All ER 1199, [1952] 1 TLR 1037, 96 Sol Jo 295, CA, 3rd
Digest Supp), was held to create not a tenancy but a mere licence with no personal interest in the land. The
words family arrangement were indeed used by Denning LJ, in Cobb v Layne ([1952] 1 All ER 1199, [1952]
1 TLR 1037, 96 Sol Jo 295, CA, 3rd Digest Supp), but we must guard against supposing that the division of
land by family arrangement raises a legal presumption that the beneficiary of the arrangement is not a
tenant but a mere licensee. As the learned Lord Justice pointed out in Errington v Errington & Woods
([1952] 1 All ER 149, [1952] 1 KB 290, [1952] 1 TLR 231, 96 Sol Jo 119, CA, 3rd Digest Supp), the nature of
the relationship depends upon what the evidence shows to have been the intention of the parties at the time
the arrangement was made. It seemed to me that the intention here was that the defendant and her
husband should occupy this spot of land rent free, it being clearly understood however that their occupation
could be terminated at the will of the husbands fatherin other words that it was intended to create a
tenancy at will.
7. Supposing that to be so, the Statute of Limitation would, on the evidence, have run in the defendants
favour. I therefore gave judgment for the defendant.
Cases referred to in the judgment of the trial judge:
Cobb v Lane [1952] 1 All ER 1199, [1952] 1 TLR 1037, 96 Sol Jo 295, CA, 3rd Digest Supp
Errington v Errington & Woods [1952] 1 All ER 149, [1952] 1 KB 290, [1952] 1 TLR 231, 96 Sol Jo 119, CA,
3rd Digest Supp
EW Barrow (instructed by ED Rogers) for the appellant
AK Walcott (instructed by Hutchinson & Banfield) for the respondent
FIELD J.

This is an appeal from a decision of the Assistant Court of Appeal in its original equitable

jurisdiction.* The appellant then plaintiff claimed as administrator of the estate of John Richard Worrell
possession of a parcel of land situate at Rock Hall in the parish of St Andrew as part of the estate of the late
John Richard Worrell. Judgment was given in favour of the respondent then defendant. The facts are
sufficiently set out in the judges reasons at paragraphs 1 and 2 thereof. In giving judgment for the
defendant/respondent the learned trial judge found that the late husband of the respondent (the son of John
Richard Worrell) entered on the parcel of land in 1939 in circumstances from which a tenancy at will could
be implied and held that the late husband of the respondent having occupied the said parcel of land
undisturbed for a period longer than the minimum statutory period prescribed under the Limitation and
Prescription Act, 1891 [B], the plaintiff/appellant was thereby debarred from recovery of possession of the
said parcel of land.
Counsel for appellant has argued that the findings of fact by the learned trial judge were not warranted
by the evidence and further that if such findings were so warranted then those facts point to an entry and
occupation by the respondents late husband not as a tenant at will but under a family arrangement whereby
the respondents late husband became merely a licensee. He further 90 contended that having regard to
the number of years which had elapsed since entry first made and the death of the said John Richard
Worrell, at which date the plaintiff was under age and not sui juris, time could not run adversely to him so as
to enable the defendant/respondent to obtain the benefit of a prescription under the Act.
I confess that some of the facts found by the learned trial judge would seem to be more consistent with
a family arrangement than with the nature of the legal relationship such as a tenancy at will. But I am
reminded by counsel for the respondent that sitting as a Court of Appeal I am only concerned with whether
there was evidence on which the court of first instance could properly come to the conclusion it did in
respect of findings of fact and that whilst I am permitted to draw inferences different from those drawn by the
court of first instance, it is only if the inferences drawn by such court could be said to be unreasonable or
unwarranted that the Appeal Court should substitute its conclusion for those of the court of first instance.
As I stated earlier some of the facts found by the learned trial judge are equally or more consistent with
occupation by licence and not under a tenancy at will, yet having had the advantage of seeing and hearing
the witnesses the learned trial judge relied largely on the evidence of the respondent and came to the
conclusion that the entry and possession by the late husband of the respondent was under a tenancy at will
and I am satisfied that there was enough evidence from which this relationship could be held to arise. Had I
been the trial judge I may have come to a different conclusion but acting on well established principles I am
not disposed to disregard the findings and conclusions of the learned trial judge and substitute my own

conclusions. On the question of the period of time which has elapsed since entry made (in 1939) and the
fact that on the death of John Richard in 1946 the plaintiff/appellant was then under disability being under 21
years of age, I am of the opinion that notwithstanding his age at that date, time continued to run in favour of
the respondents late husband. It must be borne in mind that the plaintiff/appellant is suing as administrator
and not as heir-at-law or devisee of the late Simeon Worrell, the respondents husband, or as owner under a
conveyance.
On the death of the late John Richard Worrell (the owner of the land in 1946) the right which he had to
bring an action to recover possession would have survived to the personal representatives and the fact that
a person who subsequently became administrator to his estate was at the time of the death of John Richard
under legal age, does not prevent time running against the interest of his estate.
Finally when the prescribed period under the Act has run in favour of the person in possession, not only
is the action barred but his right to recover possession is extinguished. In this case the late husband of the
respondent acquired statutory title and whilst the widow cannot claim through him yet she is entitled to resist
a claim by the present plaintiff/appellant. The position would be different if the person claiming was heir-atlaw or devisee or a person to whom the respondents late husband had conveyed the land. The
plaintiff/appellant has therefore no right to possession in his capacity of administrator of the estate of the late
John Richard Worrell.
In conclusion I wish to say that I am grateful to counsel on both sides for the way in which they argued
their respective issues.
For the reasons stated the appeal is dismissed and the appellant to pay costs to be taxed.
Appeal dismissed.

91
(1959) 1 WIR 92

Briggs v Bryan
SUPREME COURT OF BARBADOSAPPELLATE JURISDICTION
FIELD J
2 FEBRUARY 1959

Contract for services Indefinite period Promise to devise land Part performance Statute of Frauds
[B].
The plaintiff agreed to look after the defendant by providing him with food and by doing his washing and
mending and making shirts and underwear for the balance of his life and in return he promised that at his
death he would leave her his land and the house thereon. Subsequently defendant refused to take the food
and plaintiff stopped feeding him and washing his clothes, etc. She then brought this action claiming 50
damages for breach of contract. Judgment was given for the defendant and the plaintiff appealed.
Held: (1) that the facts as found by the trial judge did not constitute an enforceable contract;
(2) if contract there was, it was one referable to land which would require written evidence (of which there
was none) to satisfy the Statute of Frauds [B] or part performance and in the circumstances there was not
such part performance as would satisfy the statute.
Appeal dismissed.
Case referred to
Maddison v Alderson (1883), 8 App Cas 467, 52 LJQB 737, 49 LT 303, 47 JP 821, 31 WR 820, HL, affg sc
sub nom. Alderson v Maddison (1881), 7 QBD 174, CA, 12 Digest (Repl) 182, 1245.
Appeal
Appeal from the original legal jurisdiction of the Assistant Court of Appeal.*
G B Niles (instructed by Hutchinson & Banfield) for the appellant/plaintiff
A K Walcott for the respondent/defendant

FIELD J. The trial judge in his reasons stated concisely the main facts on which the plaintiff/appellant
sought to recover damages against the defendant/respondent and held that there was no contract for which
she could ask the court to award damages in respect of the repudiation thereof by defendant/respondent
and based his decision on the case of Maddison v Alderson ((1883), 8 App Cas 467, 52 LJQB 737, 49 LT
303, 47 JP 821, 31 WR 820, HL, affg sc sub nom. Alderson v Maddison (1881), 7 QBD 174, CA, 12 Digest
(Repl) 182, 1245), the facts of which were so similar to this case as to make little difference in the
application of the legal principles which may be extracted from that case. Maddison v Alderson ((1883), 8
App Cas 467, 52 LJQB 737, 49 LT 303, 47 JP 821, 31 WR 820, HL, affg sc sub nom. Alderson v Maddison
(1881), 7 QBD 174, CA, 12 Digest (Repl) 182, 1245) seems to me to have been determined on two grounds,
viz (1) that there was no contract which could be said to have been broken and (2) if contract there was (and
it would have been an oral contract) then it was not enforceable owing to the absence of proof of part
performance such as would take the contract out of the Statute of Frauds [B]. The court must be in a
position to find that the terms and conditions are sufficiently clear and certain that it can be held to amount to
a contract and secondly, having so ascertained, then to be enforceable there must be such part performance
to exempt a parol contract so made from the provisions of the Statute of Frauds and such part performance
must be unequivocal and referable to such contract only and nothing else. The court seemed to decide in
Maddison v Alderson ((1883), 8 App Cas 467, 52 LJQB 737, 49 LT 303, 47 JP 821, 31 WR 820, HL, affg sc
sub nom. Alderson v Maddison (1881), 7 QBD 174, CA, 12 Digest (Repl) 182, 1245) that the acts alleged as
constituting part performance could not be unequivocally ascribed to the contract sought to be made out and
to the conduct of the plaintiff.
What are the terms of the alleged contract for the breach of which damages are now sought in this
case? The appellant was induced to supply food to the

92
respondent and to mend and make his clothes for an indefinite period, viz for his life. There is no
evidence as to the quantity, quality or type of food. There is nothing to show that it must cost a minimum or
fixed sum. Similarly with the clothes. What would happen if the plaintiff/appellant failed to provide food and
clothing? Could the respondent bring any action to make her carry out her side of the bargain? I venture to
think not. No doubt there may be cases in which a person agrees to provide certain services impliedly
expecting payment or in lieu reward in the form of a legacy or other consideration under a will and it well
may be that in certain circumstances a repudiation by one party of his obligation may give the other a
remedy for a quantum meruit. In the present case it does not seem to me that there was ever any intention
on the part of the respondent to incur any personal liability to appellant and therefore no real contract would
arise until the death of respondent if the appellant had continued throughout the life of the respondent to
provide food and clothes. Such a contract would seem to be more referable to land, which would require
written evidence to satisfy the Statute or part performance. Such part performance must be unequivocal;
and must be capable of referring to such a contract only and nothing else.
The language of Lord OHagan seems most appropriate to the facts of this case when he states
((1883), 8 App Cas at p 485):
But though her long service is consistent with her present case it is not demonstrative of any
contract to give her the life interest she claims. She might unquestionably have remained with her
master, in the enjoyment of some present comforts and the expectation of some future provision,
though no such contract had been even dreamt of. There have not been wanting recorded cases in
which time and care have been bestowed by one person upon another, even from vague anticipation
that the affection and gratitude so given would in the long run, ensure some indefinite reward. And
legal tribunals have refused in those cases to turn courtesy into contract and compel any payment
although such service had been performed. In such circumstances and even when there may have
been a general undertaking to afford a suitable acknowledgment there would be no ground for inferring
a contract for the conveyance and devise of landed estate to the person rendering the service,
however valuable it might have been, and however clear might be the right to remuneration for it in
another way, the rendering of it not being necessarily referable to any such contract.
The facts as found by the trial judge were warranted by the evidence and I agree with those findings of
fact. I also agree that those facts do not constitute any contract between plaintiff/appellant and respondent
so as to give rise to an action for damages. The appeal is dismissed. Appellant to pay costs to be taxed (on
old scale).
Appeal dismissed.

93

(1959) 1 WIR 94

Adams v Adams
SUPREME COURT OF BARBADOSAPPELLATE JURISDICTION
FIELD AG CJ AND HANSCHELL J
2 JANUARY 1959

Maintenance Arrears Seventeen summonses Appeal Recognizance to prosecute appeal Notice of

appeal Magistrates Jurisdiction and Procedure Act, 1956 [B], ss 132 and 137, and the Magistrates Courts
(Criminal Procedure) Rules, 1958 [B], rule 26.
The appellant was ordered by a Magistrate to pay various sums in respect of arrears due under a
maintenance order. Seventeen summonses were issued for seventeen separate sums, five being for the
support of the wife and twelve for the children. All seventeen summonses were heard at one and the same
time. The notice of appeal was given with the endorsement written in red ink on it to the effect Appellant
gives notice of appeal in all seventeen cases. The recognizance was entered into by appellant with one
surety in sum of $25.00 to prosecute the appeal and pay costs.
Held: (1) the single notice as endorsed sufficiently complied with s 132 of the Magistrates Jurisdiction and
Procedure Act, 1956 [B];
(2) the single recognizance entered into by appellant did not comply with s 137 of the said Act.
Appeals struck out.
Cases referred to
R v Oxfordshire JJ (1843), 4 QB 177, 3 Gal & Dav 348, 7 J P 50, 7 Jur 195, 114 ER 865, sub nom R v
Oxfordshire JJ, Re Jemmett, 12 LJMC 40, 33 Digest 441, 1505
Paprika, Ltd v Board of Trade [1944] 1 All ER 372, [1944] KB 327, 113 LJKB 209, 170 LT 269, 108 JP 104,
60 TLR 203, 42 LGR 131, DC, 2nd Digest Supp
R v Glamorganshire JJ (1890), 24 QBD 675, 59 LJMC 150, 62 LT 730, 55 JP 39, 38 WR 640, 17 Cox, CC
45, DC, 33 Digest 404, 1143
Appeal
Appeal to the Full Court of the Supreme Court from the decision of a Magistrate.
H A Williams (instructed by Haynes & Griffith) for the appellant
J S B Dear (instructed by Hutchinson & Banfield) for the respondent
FIELD Ag CJ. delivered the judgment of the court: This is an appeal from the decision of a Magistrate given
on 23 September 1958, whereby the appellant was ordered to pay various sums in respect of arrears due
under a maintenance order. There were seventeen summonses issued in respect of seventeen separate
and distinct sums of money as appear on the record, of which five were for the support of the wife
(complainant respondent) and twelve were for the support of the children. These seventeen summonses
were heard at one and the same time. Of these, five of the sums were ordered to be paid forthwith and the
remaining twelve were ordered to be paid within periods varying from seven to twenty-eight days. The form
of notice of appeal which appears on the record purports to be given in respect of the seventeen orders, as it
has written on it Appellant gives notice of appeal in all seventeen cases, thus suggesting that notice was
given verbally by the appellant, reduced into writing by the Clerk and signed by the appellant. There is a
recognizance also on the record entered into by the appellant as principal with one surety in the sum of
$25.00.
Counsel for the respondent has taken four objections in limine, namely:

94
(1) There was only one recognizance and there should be seventeen.
(2) No grounds of appeal were received by the respondentthis objection was subsequently
abandoned.
(3) Only one notice of appeal was given in respect of seventeen cases.
(4) Of the grounds of appeal, grounds 1 and 3 are unknown to the law.

The court considers that the notice substantially complies with s 132 of the Magistrates Jurisdiction and
Procedure Act, 1956 [B], and that the respondent could not reasonably be held to have been thereby
deceived or misled. For this we rely on s 149 of the said Act and on R v Oxfordshire JJ ((1843), 4 QB 177, 3
Gal & Dav 348, 7 J P 50, 7 Jur 195, 114 ER 865, sub nom R v Oxfordshire JJ, Re Jemmett, 12 LJMC 40, 33
Digest 441, 1505).
On the question of the recognizance and its sufficiency it will be seen from the condition of the form of
recognizance that this condition has been amended so that it purports to cover the appeals in part of the
said condition and suggests that the Magistrate treated it as a recognizance in respect of all seventeen
appeals.
Section 137 of the said Act provides as follows:
Within three days after giving notice of appeal, the appellant shall, unless he remains in custody
under the provisions of section one hundred and thirty-nine of this Act enter into a recognizance in the
sum of twenty-five dollars with one or more sureties acknowledged before a Magistrate and
conditioned to appear and prosecute the appeal and abide by the judgment of the Supreme Court
thereupon and pay such costs as may be by the Supreme Court awarded. Such recognizance shall be
in the prescribed form:
Provided that the Magistrate may accept a deposit of money from or on account of any person in
lieu of such surety or sureties and in such case, upon the deposit of the sum fixed by the Magistrate,
the appellant shall enter into a recognizance in the prescribed form.
The question which the court has to decide is whether the recognizance on the record in this case
complies with the requirements of the said s 137. In this matter the Magistrate made seventeen orders and
the record contains seventeen formal orders as required by s 138 (2) of the said Act and Rule 26 of the
Magistrates Courts (Criminal Procedure) Rules, 1958 [B].
In these circumstances we consider that a separate recognizance in respect of each order appealed
from should have been entered into by the appellant.
The provisions of the said s 137 must be complied with strictly by any appellant. Paprika, Ltd v Board
of Trade ([1944] 1 All ER 372, [1944] KB 327, 113 LJKB 209, 170 LT 269, 108 JP 104, 60 TLR 203, 42 LGR
131, DC, 2nd Digest Supp), R v Glamorganshire JJ ((1890), 24 QBD 675, 59 LJMC 150, 62 LT 730, 55 JP
39, 38 WR 640, 17 Cox, CC 45, DC, 33 Digest 404, 1143). If an appellant is unable to find the necessary
surety or sureties then the provisions of s 139 of the said Act apply. If the appellant was able to find the
sureties but was prevented from entering into the recognizances due to some neglect or error on the part of
the Magistrate then there would be open to such appellant a remedy by way of mandamus directed to the
Magistrate to allow the necessary recognizances to be acknowledged before him.
There is nothing in the record to indicate that either of these situations arose nor has it been suggested
by counsel for the appellant that such was in either event the case. The recognizance in the record is
conditioned for the prosecution of the appeals and cannot be attached to any one particular appeal.
Holding as we do that seventeen separate recognizances are required we do not consider that s 149 is
applicable to the circumstances of this case in respect of the recognizance.
For these reasons the court cannot entertain the appeals and the 4th objection of counsel for the
respondent does not call for decision. The appeals are accordingly struck out. The appellant is ordered to
pay costs to be taxed.
Appeals struck out.

95
(1959) 1 WIR 96

Bourne v Edwards
SUPREME COURT OF BARBADOSAPPELLATE JURISDICTION
STOBY CJ AND FIELD J
24 APRIL 1959

Larceny Value of article stolen Proof of value Jurisdiction Magistrates Jurisdiction and Procedure
Act, 1956 [B], ss 35 (1) and 135 (1).

The appellant was convicted on 15 January 1959, by a Magistrate for stealing a shoe valued $8.00. No
evidence was given of the money value of the shoe although in the information this value was alleged to be
$8.00. In the formal order of conviction that value was inserted. The appellant appealed against conviction.
Held: (1) that the evidence established that the shoe was an article of value;
(2) having regard to the proviso to s 135 (1) of the Magistrates Jurisdiction and Procedure Act, 1956 [B],
objection not having been taken before the Magistrate trying the case, it was not competent to take objection
to his jurisdiction on appeal.
Appeal dismissed.
Case referred to
R v Morris (1840), 9 C & P 349, 15 Digest (Repl) 1077, 10, 629
Appeal
Appeal from the decision of a Magistrate. The facts appear in the judgment of the court.
D H L Ward for the appellant
G E Wellington for the respondent
STOBY CJ delivered the judgment of the court: The appellant was charged before a Magistrate of District A
with stealing on 15 January 1958, one shoe value $8.00, one brown leather purse value $3.00 containing
$9.60 the property of Orville Lovell.
Before the Magistrate it was established that Lovell was standing on the road near Maxwell Hill when
the appellant struck her. As a result of this blow a struggle ensued during which Lovells shoe came off.
Thereupon the appellant picked up the shoe and ran away with it. Efforts to persuade the appellant to return
the shoe proved fruitless and she was subsequently charged with larceny.
Although evidence of the value of the articles not stolen was given, no evidence of the value of the
stolen shoe was given.
The Magistrate convicted the appellant of larceny of a shoe and in the formal order of conviction
inserted $8.00 as its value.
At the hearing of the appeal counsel for the appellant abandoned the grounds of appeal filed and
applied for leave to add another ground namely that the appellant is not guilty on the ground that there was
no evidence to support the decision. On this amendment being granted counsel submitted that there was
no evidence of value of the shoe and it was therefore not competent for the Magistrate to convict of larceny.
He referred us to the following passage in Paley On Summary Convictions, p 279, which deals with the
requisites of the order to be drawn up after a summary conviction. The passage is:
The most essential requisite in the description of the offence is that it contains in express terms
every ingredient which is required by statute.
In Barbados the law relating to larceny is the common law of England but as has been pointed out
repeatedly the Larceny Act, 1916 [UK], made no change in the law but merely consolidated it without
imposing anything new. This being so it may be useful to refer to the relevant portion of the statutory
definition of larceny.

96
A person steals who.... takes and carries away anything capable of being stolen ....
At common law one of the ingredients necessary to make a thing capable of being stolen was that it must
have value. An article without value was not capable of being stolen but it mattered not how little the value
once it was worth something in money to the owner. This principle was enshrined in s 1 (3) of the Larceny
Act, 1916 [UK], which states:
Every thing which has value and is the property of any person shall be capable of being stolen.
In a case in 1840 this question of value in a charge for larceny was discussed. The case is R v Morris
((1840), 9 C & P 349, 15 Digest (Repl) 1077, 10, 629). The prisoner was indicted for feloniously receiving
on 11 December 1840, of a certain evil-disposed person nine pieces of paper value two shillings of the
goods of John Bentley and others well knowing them to have been stolen. No evidence was given of the

value of the paper and at the close of the case for the prosecution it was submitted on behalf of the prisoner
that there was not any case to go to the jury. Counsel said:
The prisoner is charged with stealing (sic) nine pieces of paper. Only one of them is traced to his
possession and that is not of any value so as to sustain an indictment. It must be of some value of
some coin known to the law.
The following discussion then took place.
Baron Parke: It may be a very small value still it is worth something. You say that it must be of
some assignable valueof the value of some coin. Shew me an authority for that position.
Adolphus: The practice has been uniform on that subject. There must, I submit, be a value
assignable.
Baron Parke: There is no doubt it must be of some value and it is of some value. But it is quite
new to me that it must be of the value of some coined moneyof a farthing at least.
After further argument Baron Parke agreed that evidence of value should be given and a witness gave
the value of the paper at a farthing and a half. Baron PARKE then said:
It has cost more than a farthing. Therefore the point does not arise. But I must be understood for
one as not considering that it was necessary to shew that the article must be of the value of some
known coin. It must be of some value, no doubt... I have not been able to find any case in support of
the argument for the defence nor has the prisoners counsel been able to produce any.
In our view the test which the Magistrate had to apply was Is a shoe an article capable of being
stolen? That question he had to answer in the affirmative. There was no evidence that a shoe was one of
the articles within the class incapable of being stolen at common law such as an article attaching to the
realty and so on. The mere claim to it by the nominal complainant added to the fact that it is an article of
footwear established that to the individual concerned it was an article of value and a fit subject of larceny.
We agree that careless prosecutions ought not to be encouraged and we agree too that courts ought
not to be placed in a position of drawing inferences from evidence where positive evidence on a subject is
available but we are satisfied that the circumstantial evidence justified the Magistrate in coming to the
conclusion that the shoe had sufficient economic value to be larcenable.
During the course of the argument counsel for the appellant said that if the appellant had been charged
on an indictment then by virtue of the Indictments 97 Act, 1915 [UK], which by virtue of s 3 of the Grand
Sessions and Criminal Law (Procedure) Act, 1891 [B], as inserted by the Supreme Court of Judicature Act,
1956 [B], governs criminal trials in Barbados there would be no necessity to give evidence of value if from
the evidence the inference could be drawn that the article could be the subject of larceny. This being so the
submission really is that the Magistrate had no jurisdiction to determine this matter.
Section 35 (1) of the Magistrates Jurisdiction and Procedure Act, 1956 [B], permits an offender charged
with larceny of goods not exceeding $50 in value to be tried by a Magistrate. This means that the Magistrate
has no jurisdiction to deal with an offence where the amount involved is over $50. Section 135 (1) of the
same Act provides that a ground of appeal may be that the Magistrate had no jurisdiction in the case.
A proviso to this subsection is that it shall not be competent for the Full Court of the Supreme Court to
entertain such an appeal unless objection had been formally taken at some time during the progress of the
case and before the pronouncing of the conviction. No such objection was taken at the time and in our view
it is not competent for us to consider a ground of appeal which really involves the jurisdiction of a Magistrate.
We must not be understood as deciding that where a Magistrate clearly acts without or in excess of his
jurisdiction there is no way of having such a decision reviewed by the Supreme Court but on the facts of this
case on the face of the complaint the Magistrate had jurisdiction and if it was desired to contend that he had
no jurisdiction then objection should have been taken in the court below in which case the Magistrate could
have declined jurisdiction or clarified the matter by calling for evidence as was done in 1840 in R v Morris
((1840), 9 C & P 349, 15 Digest (Repl) 1077, 10, 629).
For the above reasons the appeal is dismissed. There will be no order as to costs.
Appeal dismissed.

(1959) 1 WIR 98

Codrington v Lynch
SUPREME COURT OF BARBADOSAPPELLATE JURISDICTION
STOBY CJ AND FIELD J
6 FEBRUARY 1959

Road Traffic Exceeding the speed limit Notice of intended prosecution Motor Vehicles and Road Traffic
Act, 1937 [B], s 48.
The appellant was convicted by a Magistrate for driving a motor vehicle at a greater speed than the
maximum speed specified for such class of vehicle. No warning was given at the time of the offence nor
was a summons served within the prescribed period. A notice of intended prosecution was sent by
registered post to the correct address of appellant but was returned by postal authorities as undelivered.
Held: As the failure to serve the notice was not due to any fault of the appellant the notice posted to the
correct address but undelivered was not sufficient compliance with the provisions of the Motor Vehicles and
Road Traffic Act, 1937 [B], s 48.
Appeal allowed.

98
Case referred to
Beer v Davies [1958] 2 All ER 255
Appeal
Appeal to the Full Court of the Supreme Court from the decision of a Magistrate.
J E T Brancker for the appellant
G E Wellington for the respondent
STOBY CJ delivered the judgment of the court: This is an appeal from the decision of a Magistrate sitting at
District E convicting the appellant, Seymour Codrington, for driving a motor vehicle at a speed greater than
the speed specified in the Motor Vehicles and Road Traffic Regulations, 1952 [B], contrary to s 44 (1) of the
Motor Vehicles and Road Traffic Act, 1937 [B].
Section 48 of the Act states that where a person is prosecuted for an offence relating to the maximum
speed at which a motor vehicle may be driven he shall not be convicted unless either (a) he was warned at
the time the offence was committed that the question of prosecuting him for an offence under one or other of
ss 44, 45, 46 and 47 would be taken into consideration, or (b) within fourteen days of the commission of the
offence a summons for the offence was served on him, or (c) within fourteen days of the commission of the
offence a notice of the intended prosecution specifying the nature of the alleged offence and the time and
place where it is alleged to have been committed was served on or sent by registered post to him or to the
person registered as the owner of the vehicle at the time of the commission of the offence. There is a
proviso to s 48 to which reference will be made in a moment.
The evidence established that the appellant was not warned at the time nor was the summons served
on him within fourteen days of the commission of the offence but in an effort to comply with the provisions of
the Act a notice of intended prosecution was posted to an address which the appellant admitted was his
correct address. The notice however was returned from the Post Office undelivered.
Counsel for the Crown drew our attention to the case of Beer v Davies ([1958] 2 All ER 255) in which a
Divisional Court held that a notice sent to a persons home address but which is not delivered is not
sufficient compliance with the provisions of the Act. * In the same case the proviso was discussed. The
proviso to the Act states that failure to comply with the requirement shall not be a bar to the conviction of the
accused in any case where the court is satisfied that (1) neither the name and address of the accused nor
the name and address of the registered owner of the vehicle could with reasonable diligence have been
ascertained in time for a summons to be served or for a notice to be sent or served as aforesaid, or (2) the
accused by his own conduct contributed to the failure.
In discussing the proviso in Beer v Davies ([1958] 2 All ER 255) Lord Goddard CJ, said ([1958] 2 All ER
at p 258):
The whole point is this, that it is said that the accused by his own conduct contributed to the failure
because he had given an address and had not said to the police I am going to be away on a certain

day. Even if he knew that he was going to be away on the day, he at any rate would not know that he
was going to be prosecuted. The very object of this notice is to tell him that he is going to be
prosecuted. Still less would he know when the notice was going to be served on him. I think that the
words the accused by his own conduct contributed to the failure mean that the accused had done
something which prevented the police from serving him, such as giving a false address.

99
In the instant appeal it is admitted that the appellant gave his correct address and that the failure to
serve the notice was not due to any fault of his. As an essential requirement of the Act was not complied
with the appeal will be allowed with costs.
Appeal allowed.

(1959) 1 WIR 100

Edward Lashley v R
SUPREME COURT OF BRITISH GUIANACOURT OF CRIMINAL APPEAL
HOLDER CJ, PHILLIPS AND LUCKHOO JJ
5, 8, 9, 10, 18 DECEMBER 1958, 17 JANUARY 1959

Criminal Law Murder Self defence Nature of evidence required to raise the issue of self defence.
In order to raise the issue of self defence on a trial for murder there must be some evidence
(a) that the accused had reason to fear death or bodily injury from some action or words of the deceased or
of a person or persons acting in complicity with the deceased; and
(b) that the accused had no opportunity to retreat or retreated as far as he could; and
(c) that the accused struck the blows causing the injuries which resulted in the deceaseds death with the
intention of defending himself from death or injury, that is, that he then considered his life or limb in actual
danger.
Appeal dismissed.
Cases referred to
R v Duffy [1949] 1 All ER 932n, CCA, 2nd Digest Supp
R v McCarthy [1954] 2 All ER 262, [1954] 2 QB 105, 98 Sol Jo 356, 38 Cr App Rep 74, CCA, 14 Digest
(Repl) 71, 330
Bedder v Director of Public Prosecutions [1954] 2 All ER 801, 98 Sol Jo 556, 38 Cr App Rep 133, HL, 15
Digest (Repl) 940, 9013
R v Semini [1949] 1 All ER 233, [1949] 1 KB 405, [1948] LJR 556, 65 TLR 91, 93 Sol Jo 60, 33 Cr App Rep
51, CCA, 15 Digest (Repl) 946, 9100
Sodeman v R [1936] 2 All ER 1138, 80 Sol Jo 532, PC, 14 Digest (Repl) 62, 256
Editorial Note. As to Self Defence against assault and in resistance to felonious violence, see 10
Halsburys Laws (3rd Edn) 743, para 1429, and 721, para 1382; and for cases see 14 DIGEST (Repl) 994995, 9768-9784.
Appeal
Appeal against conviction and sentence. The appellant was convicted before Stoby J, at the Demerara
Criminal Sessions on 21 October 1958, of murder and was sentenced to death. He appealed against his
conviction and sentence on several grounds, inter alia, that the judge in his summing up did not adequately
direct the jury on the issues of manslaughter and insanity and had omitted to direct them on self defence.
C Weithers (instructed by O M Valz) for the appellant
GM Farnum Solicitor-General (instructed by Crown Solicitor) for the Crown

100

HOLDER CJ delivered the judgment of the court: The appellant was on 21 October 1958, convicted before
Mr Justice Stoby and a jury at the Demerara Criminal Sessions of the murder of Leslie Hannibal and was
sentenced to death. From his conviction and sentence he has appealed.
The evidence for the prosecution was to the effect that about 3.30 pm on 22 June 1958, the deceased
Leslie Hannibal, a police constable in uniform, was on beat duty in James Street, Albouystown, Georgetown,
when the appellant riding a bicycle along that street collided with a hydrant at the side of the street. On
hearing the sound of the collision, Hannibal walked in the direction of the appellant when the appellant who
appeared to be angry was heard to say in a loud tone of voice to Hannibal, Why you come across me?
Hannibal then took out his baton and told the appellant that he was going to take him to the police station.
Police Constable Martin who was off duty and was then cycling along James Street came up to the scene
and as the appellant was observed to put his hand in his pocket suggested to Hannibal that the appellant be
searched. The appellant ran into a nearby yard leaving his cycle. Hannibal accompanied by Martin then
took the appellants bicycle to the Ruimveldt Police Station where he made a report and lodged the bicycle,
the officer in charge of that station informing Hannibal that the appellant would be proceeded against by way
of summons. About twenty minutes after Hannibal had left for the police station with the appellants bicycle,
the appellant returned to James Street carrying a piece of greenheart wood in his hand and on inquiring for
his bicycle was told by someone that it had been taken to the police station. He appeared to be annoyed
and said that he was going for his bicycle. There was evidence that shortly thereafter, at about 3-4 p m, the
appellant was seen in the gallery of his house at La Penitence sharpening a cutlass and heard saying that
he must kill and when he finished it would be like the Rattan murder case and that after sharpening the
cutlass he placed it in a rice bag and left his house carrying the bag and cutlass.
After lodging the appellants bicycle at the Ruimveldt Police Station, Hannibal returned to beat duty in
James Street. At about 5 pm while Hannibal was in James Street speaking with other persons the appellant
was seen coming towards him carrying a folded rice bag. Hannibal had a cloak in his left hand and a baton
in his right and told the appellant that he was wanted at the station. The appellant then took out a cutlass
from the rice bag, and said to Hannibal, Boy, dont make your eyes pass me. The appellant then struck
Hannibal a blow on the back with the cutlass. Hannibal ran east in James Street, pursued by the appellant
with upraised cutlass. Hannibal stumbled and fell into a gutter and the appellant proceeded to chop
Hannibal with the cutlass while Hannibal lay in the gutter with his right hand upraised to avoid being cut on
the face. The appellant inflicted several injuries with the cutlass on Hannibal and when Police Constable
Karim who was on patrol in Hunter Street came up to the scene while the appellant was still chopping
Hannibal who was lying in the gutter, the appellant raised his cutlass at Karim and ran towards him. Karim
sought refuge in a yard in Hunter Street. Corporal of Police Fordyce who was at the corner of James and
Albert Streets, Albouystown, armed himself with a piece of aluminium piping and went towards the scene.
He saw the appellant running east on the punt trench dam nearby with a cutlass in his left hand and a rice
bag in his right. Fordyce pursued the appellant and on reaching him told him to drop the cutlass and that he
was going to arrest him. The appellant had his cutlass upraised and told Fordyce, I just fuck up you
mattee. Fordyce tried to arrest the appellant and struggled with him. In the course of the struggle Fordyce
struck the appellant a blow on the shoulder with the piece of aluminium piping. They fell into the trench and
Fordyce 101 had to hold the appellant under the water before he succeeded in subduing him. After his
arrest the appellant was at 5.45 pm that day examined by the Prison Surgeon, Dr Jaikaran, who found no
evidence of injury to him.
Hannibal who had several wounds on the left arm and on the body was taken in an unconscious
condition to the Public Hospital, Georgetown, where he was at about 5.15 pm admitted a patient. He died
about five minutes after admission from shock and haemorrhage as a result of the following multiple
wounds:
1. An incised wound on the left thumb and hand measuring 3 in length and reaching down to the
underlying bone and opening at the joint of the thumb.
2. An incised wound at the back of the left shoulder 3 3/4 long measuring 1 in greatest depth, the
upper edge of the wound being undermined.
3. An incised wound of the inner aspect of the left arm and forearm 9 in length, all the tissue down to
the bone of the arm being cut, and also a part of the lower end of the arm bone. The muscles of the upper
part of the forearm were cut. The width of the wound at its greatest extent was 4. A flap of skin and muscle
had been separated off.
4. An incised wound across the left armpit, 6 long and 1 3/4 in greatest depth.
5. An incised wound 6 in length 3/4 below wound 4.
6. An incised wound on the front of the left arm v-shaped.
7. Small abrasions in the region of the back of the right elbow and one near the right wrist.
In evidence Dr Nehaul, the Government Bacteriologist and Pathologist in charge of the Central Medical
Laboratory, who performed the post mortem examination stated:

Wound No 1 must have been received in my opinion when the deceased was defending himself.
The attacker and deceased must have been facing each other and standing.
Apart from the explanation I have given it is possible to have other explanations assuming other
positions. The position I have assumed is that both were standing and facing each other and one
attacking the other.
Wound No 2 was inflicted in my opinion when the deceased was lying on his face and by a cutlass
or sharp cutting instrument. A glancing blow.
Wound No 6 was in my opinion inflicted with a cutlass when the deceased was lying on the ground
half turning and his left arm partly raised.
Wound No 3 was in my opinion inflicted when the arm was still raised.
Wounds No 4 and 5 inflicted in the same position as 3 and 6 except that the left arm was raised
away from the side with the armpit exposed as if the deceased was trying to cover his head.
Wound No 1 could also have been inflicted when deceased was in position as described with
respect to wounds 4 and 5.
The abrasions were probably due to a fall.
From the record of appeal it would appear that no questions in cross-examination were put to Dr Nehaul
in respect of the opinion he gave as to the positions in which the deceased was when he received the
several wounds described. Support for the case for the prosecution as to circumstances under which and
the manner in which the appellant attacked Hannibal came from a witness Ivor George called by the
defence. George had originally given evidence for the prosecution at the preliminary inquiry into the charge
of murder laid against the appellant but was not called by the Crown at the trial.
In his defence the appellant made an unsworn statement from the dock as follows:

102
On 22 June 1958, I rode my bicycle through James Street to La Penitence Market to buy oats for
my donkey. The market was closed. I returned through James Street riding my cycle as I did not get
the oats because the market was closed. About 9.30 am on 22 June 1958, I stopped in at one Basil
Mack and invited him to a drink. I stopped in at one Kassie Rams tavern and at Foos Tavern and at
James and Hunter Street tavern. Many other friends joined with us and we drank a great deal. I
cannot remember having any bottles of rum. We drank but about 12.30 at Kassie Rams tavern I
started to feel sweet because I had nothing to eat that morning. As I reached home I had something to
eat. My wife was not at home so I thought I would go and meet her. As I was cycling down through
James Street that is from east going west about 2.30 pm-3 pm I saw Constable Hannibal raising his
baton and signalling me to stop. I did not stop. I swerved away from him. My bicycle fell down.
Hannibal came over from the northern side to the southern side and accused me of stealing the bicycle
I was riding. I protested. Just then another policeman in civilian clothes came up and told Hannibal
dont argue with the man beat the bitch and lock him up we have the law to protect us. Another
policeman came up and told Hannibal to search him. Seeing them swarming me like that I became
afraid. As I thought I had fallen in a police trap I threw my bicycle against Greens Drug Store and ran
through the yard. I stood in the yard about half an hour. When I came out from the yard my bicycle
was missing. When I ran into yard Hannibal and other policemen followed me but did not catch me.
Hannibal shouted you want trouble I going give you trouble. someone on the opposite side of the road
named Prescod who gave evidence today told me that the police had taken my bike to the Station. I
said man you see if I did not run from the people fast now they would have hold me and locked me up
because I have a bad record. (Note by Judge: Before witness repeated this I told him that no need to
say that unless he wanted to. This was because he said it in a jumbled manner and I do not think jury
heard. Despite warning he repeats it.)
I also told Prescod the police are always laying a trap for me. Prescod in turn advised me not to go
to Station for cycle. I turned back and went home.
About 4.30 pm as it is customary for me to feed my donkeys I picked up my bag and my cutlass
and I went out to cut grass. I did not use any threats to anyone nor swear to kill anyone. On my way
to cut the grass which I had intended to cut in Princess Street I saw Hannibal and another policeman
approaching me. As he approached me he pulled out his staff and said you bitch you we come to take
you dead or alive and he started to beat me with the staff (accused demonstrates). I fell down. While I
was in the yard I heard someone say You run away this morning you cant run now I going kill you. He
was still beating me. I was still on the ground. My mind became a blank. I do not know what
happened next.
It was not until the following morning when I found myself at Ruimveldt Police Station that I was told
I had killed Hannibal. I did not intend to harm Hannibal. I do not know what came over my mind from
since I heard that I killed Hannibal until now I am grieved and distressed. I am very sorry for the life I
have taken. I do not know why the police always molest me. The police always find excuses to arrest

me. On several occasions people make false reports against me and the police arrive in my house in
great numbers with their big staffs to terrorise me but I always try to control myself. Police always
accused me as an old jail man. The satisfaction they give me is who must we believe? The people or
the old convict.
On one occasion I went to Brickdam to make a report also at Ruimveldt Police Station and they
chased me away saying You tek away the policemans wife go out the Station. I do not know what to
say about you, an old thief 103 man and convict like you. You know I am always being ill with my
head. When I was a small boy about 10-12 years of age a donkey kicked me on the head in Bourda
pasture and my head was cut. From since then everyone tells me that I am a madman. That is all.
Evidence was given for the defence by one George Humphrys to the effect that at about 3 pm the
appellant was riding a bicycle in James Street when Hannibal who had a baton in his hand signalled the
appellant to stop. The appellants pedal struck a hydrant causing his bicycle to fall and Hannibal came
towards the appellant with his baton upraised. PC Martin who was present said beat the man and kill him
the law is there to cover us. The appellant said to Hannibal whats wrong with you and Hannibal told the
appellant he would arrest him, holding on to the appellants bicycle. Hannibal attempted to prevent the
appellant from leaving whereupon the appellant ran away chased by Hannibal who said to him You want
trouble, I going give you trouble.
Evidence was also given for the defence to the effect that the appellant had been drinking large
quantities of alcoholic liquor on that day and that Hannibal shortly before he received the wounds also had
been drinking. Medical testimony was called by the defence which established that in 1933 while the
appellant was a convicted prisoner he was examined by the Prison Surgeon, Dr Wharton, and by Dr Francis
who certified him as insane. As a result the appellant was sent to the Mental Hospital where he was
examined by Dr Nicholson who wrote up day by day reports on the appellant in the book kept for that
purpose. This book was admitted in evidence at the request of the defence. Eventually on 13 December
three months after the appellant was at the Mental Hospital under Dr Nicholsons care, the doctor wrote as
follows:
This mans conduct since admission has been almost exemplary save that he teases other
patients occasionally. Behaviour is rational in every way, conversation intelligent, memory very good.
Indeed, he knew about all the things he did during his fits of insanity when at the Georgetown Prison,
and protested that he was never insane whilst at the prison, that they were made-up stories in order to
get him here. He makes himself useful and is cheerful.
I had formed the opinion long before 13 October on which date I made a note in the case-book, that
this man before his trial had been trying to circumvent the law by a plea of insanity; that subsequently it
was a display of lawlessness. I learnt afterwards that he had made the acquaintance of Joseph
Fortune, a criminal patient discharged from this institution to the Georgetown Prison, and from Fortune
he had evidently learnt a few things about the Mental Hospital. (Now we know that, according to
Fortune, this is entirely wrong.) This explains his insanity at the prison.
Once only since admission with a view to keeping up the deception did he pretend to be insane.
Reproached for his conduct he resumed normality.
I adhere to my opinion that Edward Lashley has never at any time been insane.
Apparently after Dr Nicholsons report the appellant was discharged from the Mental Hospital but was
sent back there in 1934 when Dr Mook Sang who had the appellant under his care wrote in the report book
as follows:
This criminal is so dangerous and tricky that I am of opinion that he should be confined for life as
he will ever be a danger to the community at large if let free.
In 1935, the appellant was discharged from the Mental Hospital by Dr Grandsoult.
There was no evidence led that the appellant has ever since 1935 returned to the Mental Hospital.

104
Evidence was given that the appellant had during 1957 made many reports to the police all of which
had been investigated. Some of those reports the police concluded to be false while others were not
confirmed.
Dr Francis who together with Dr Wharton certified the appellant as insane in 1933 died some years ago
and Dr Mook Sang was not in the Colony at the time of the trial.
The other doctors who examined the appellant in 1933 and 1935 and Dr Jaikaran who had the appellant
under observation since his arrest on 22 June 1958, all gave evidence at the trial in respect of the issues
raised as to the appellants sanity in 1933, 1935, on 22 June 1958, and at the time of the trial.
Several grounds of appeal were argued by appellants counsel before us.

It was first submitted that the trial judge did not adequately or at all direct the jury as to the law of self
defence and its application to the appellants case.
It is common ground that the trial judge withdrew the question of self defence from the jury. The
evidence of the prosecution witnesses was to the effect that the appellant armed with a cutlass without any
blow struck or attempted or threatened to be struck by Hannibal attacked Hannibal who fled pursued by the
appellant, that Hannibal fell into a gutter where the appellant inflicted further injuries on his person with the
cutlass resulting in Hannibals death. On the prosecutions evidence no issue of self defence arose. Is there
any evidence from the appellant or from any of the defence witnesses on which such an issue can fairly be
said to arise? Not on the evidence of the defence witnesses as is conceded by counsel for the defence.
Can it be considered to arise on the appellants evidence? There must be some evidence of the following
three requirements to raise the issue:
(a) that the appellant had reason to be in fear of death or bodily injury from some action or words of the
deceased or of a person or persons acting in complicity with him; and
(b) that the appellant had no opportunity to retreat or retreated as far as he could; and
(c) that the appellant struck the blows causing the injuries which resulted in the deceaseds death with
the intention of defending himself from death or injury, that is, that he then considered his life or limb in
actual danger.
The appellants evidence satisfies the first two requirements to raise the issue but not the third because
he says nothing from which that requirement may be inferred. His evidence is to the effect that his mind
went blank while being beaten on the ground by Hannibal. If at that stage he did strike Hannibal it would be
in a state of automatism which the trial judge directed the jury would have the result that appellant would not
be guilty of any offence at all. This the jury by its verdict rejected.
Further, the silent testimony of the position of the injuries inflicted on Hannibal is inconsistent with the
injuries being inflicted in self defence. On the defence therefore the issue of self defence does not arise.
Nor does it arise on a consideration of the case as a whole.
It is to be observed that counsel for the appellant before us conceded that the appellant must have been
standing in an unright position when inflicting the injuries on Hannibal. Counsel for the appellant also
contended before us that the very nature of the injuries showed that the appellant was at the time he inflicted
the injuries in a frenzied stateand the act was that of a madman.
It was next submitted by counsel for the appellant that the trial judge did not adequately direct the jury
on the law relating to provocation and on the facts applicable thereto.
Counsel argued that the trial judge ought to have told the jury that provocation which might reduce the
offence of murder to manslaughter may be 105 constituted by acts or by words of so extreme or highly
provocative a character or by a combination of words and acts which would cause any reasonable man to
lose his self-control. Counsel further contended that the trial judge did not make it clear to the jury that they
could have regard to the words of a provocative nature alleged to be used by the deceased to the appellant.
The trial judge in his direction to the jury on the issue of provocation said:
Provocation as a defence can never result in a complete acquittal; it reduces the crime of murder
to manslaughter. What then is provocation? Provocation is some act or series of acts done by the
deceasedthat is, Hannibalto the accused, which would cause in any reasonable person and actually
caused in the accused a sudden and temporary loss of self-control rendering the accused so subject to
passion as to make him for the moment not master of his mind. Let me repeat that and divide it up for
you. Provocation is (1) some act or series of acts done by the deceased to the accused; (2) which
would cause in any reasonable person a sudden and temporary loss of self-control rendering the
accused so subject to passion as to make him for the moment not master of his mind.
So far as the Crowns case is concerned, the Crown is saying through their witnessesif you
believe themthat there was no provocation, that there was no act or series of acts done by the
deceased to the accused which could even be remotely considered as provocation. But in a murder
case where evidence of death and malice have been given by the Crown-and that is a question for you
to decide, whether that evidence which has been given satisfies youthe prisoner is entitled to show by
cross-examination, or his own evidence and evidence of witnesses, that the act on his part which
caused death was provoked. If you are satisfied it was provoked, then the verdict is manslaughter. Or,
if upon a review of all the evidence in the case, even if the prisoners evidence is not accepted, you are
in a reasonable doubt as to whether it was provoked or not, then the verdict should be manslaughter.
Now, the act or acts of provocation upon which the prisoner depends is to be found on his own
evidence when he said:
As Hannibal approached me he pulled out his staff and said, You bitch you. We come to take you
dead or alive. And he started to beat me with the staff and I fell down. While I was on the ground I
heard someone say, You run away this morning. You cant run now. I going kill you. He was still
beating me.

Members of the jury, if that happened, either alone or coupled with the earlier incident, then no
doubt you would be inclined to say that there was provocation. Even though the earlier incident by
itself would not amount to provocation, if what the accused said happened later on, then that, either by
itself or coupled with that earlier incident which you would then be entitled to take into account, would
justify you in coming to the conclusion that there was provocation. But did it happen?
The definition of provocation given by the trial judge is in substance the same as that given by Mr
Justice Devlin in R v Duffy ([1949] 1 All ER 932n, CCA, 2nd Digest Supp) and approved on appeal by the
Court of Criminal Appeal.
The trial judge in the last paragraph of the passage cited above made it clear to the jury that on the
issue of provocation regard was to be had to the earlier incident-an incident which even according to the
appellant involved no blow given by the deceased to him.
In our opinion the direction of the trial judge on this aspect of the matter was adequate.
Counsel for the appellant also contended that the trial judge failed to direct the jury as to the effect of
blows and provocative words on a person who kills 106 another while in a drunken condition. Several cases
were cited in argument by counsel for the appellant some of which we pointed out to him have been
overruled and others not approved in cases on appeal. The direction given by the trial judge to the jury on
that aspect of the case is as follows:
This is the law. I am taking the law from the opinion of the Lord Chancellor in a case in 1954 in the
House of Lords, that is, the highest court in the Empire.
The reasonable person, the ordinary person is the person you must consider when you are
considering the effect which any acts, any conduct, any words might have to justify the steps which
were taken in response thereto. So that, an unusually excitable or pugnacious individual, or a drunken
one, is not entitled to rely on provocation which would never lead an ordinary person to have acted in
the way which was in fact carried out. There may be, members of the jury, infirmity of mind and
instability of character and ungovernable temper, but if it does not amount to insanity it is no defence.
Affliction of the mind of the assailant if it does not amount to insanity is not material in testing whether
there has been provocation by the deceased to justify the violence used so as to reduce the killing to
manslaughter.
They must be tested throughout this case by the reactions of a reasonable man to the acts done by
Hannibal, if Hannibal did do any. To put all that in a simpler way, if Hannibal did in fact beat and threaten the
accused with his baton, would a reasonable man, the average man who works on his farm, or in his shop,
would he have chased Hannibal with a cutlass and killed him? It is not enough to say, Oh, Lashley was
drinking. The law isand again I am going to give you the law as laid down by the Lord Chief Justice of
England, this time in a Court of Appealthat:
Apart from a man being in such a complete and absolute state of intoxication as to make him
incapable of forming the intent charged, drunkenness which may lead a man to attack another in a
manner which no reasonable sober man would do, cannot be pleaded as excuse to reduce murder to
manslaughter. The reaction to the act of provocation must be the reaction of a reasonable man, the
violence used must bear reasonable relation to the provocation.
So you see your approach must be: Was the conduct of Hannibal to the prisoner such as would cause a
reasonable person, and actually caused the person, to lose his self-control suddenly, and to drive him into
such a passion and lack of self-control that such reasonable person might use violence of such a nature and
degree as the prisoner used here?
If on a review of all the evidence in the case you are left in a reasonable doubt as to whether there was
provocation or not, then you resolve that doubt in favour of the accused and find that there was provocation
and find a verdict of manslaughter. But if you say that you have no reasonable doubt, that Hannibals
conduct was not such as to make a reasonable person lose his self-control, you say there was no
provocation, well then, members of the jury, it is murder.
The direction given by the trial judge is in our view a correct statement of the law, see R v McCarthy
([1954] 2 All ER 262, [1954] 2 QB 105, 98 Sol Jo 356, 38 Cr App Rep 74, CCA, 14 Digest (Repl) 71, 330)
and Bedder v D P P ([1954] 2 All ER 801, 98 Sol Jo 556, 38 Cr App Rep 133, HL, 15 Digest (Repl) 940,
9013).
Counsel has criticised the penultimate line in the concluding directions given by the trial judge in the
passage set out hereunder and has contended that the jury may have been misled into thinking that the
onus was on the defence to prove that there was provocation sufficient to reduce the crime from murder to
manslaughter. The passage in which those directions occur is as follows:

107

You will remember I told you that the onus is on the Crown to prove their case. Each element
which goes to constitute murder must be proved beyond a reasonable doubt. So that in considering
provocation if you have a reasonable doubt as to whether it is provocation or not, always resolve the
doubt in favour of the accused. If you have a reasonable doubt as to whether it is provocation or not,
you find manslaughter. If you have a reasonable doubt as to whether or not he was conscious when
doing the act, resolve that doubt in favour of the accused. The only onus on the accused person is to
prove insanity, and it is not as heavy as that which rests on the Crown. Insanity is proved by the
balance of probabilities, and provocation beyond reasonable doubt. If you wish any of the exhibits you
can have them.
The passage must be read as a whole and when so read it is perfectly clear that the jury could have
been left in no doubt that there was no onus cast on the defence to prove provocation and that the only onus
on the defence was to prove insanity.
We would like to make one further observation before proceeding to deal with the further contentions of
counsel on the issue of provocation. Counsel appeared to have been unaware of the fact that the doctrine
of chance medley has no longer any place in the law of homicide since the case of R v Semini ([1949] 1 All
ER 233, [1949] 1 KB 405, [1948] LJR 556, 65 TLR 91, 93 Sol Jo 60, 33 Cr App Rep 51, CCA, 15 Digest
(Repl) 946, 9100), which he cited in support of the very proposition which was rejected in that case.
Counsel also contended that the direction given by the trial judge to the jury on the question of killing in
resistance to an unlawful arrest by a policeman was inadequate. The trial judge left this issue to the jury
with this direction:
Counsel for the defence has asked you to say, after reading from Lord Dennings lecture, that
Hannibal had no right to arrest Lashley, and therefore Lashley was justified in resisting him.
Gentlemen, have you ever in your youth built castles in the sand and then knocked them down? Is not
that what counsel has done? The Crown has never said that Hannibal had arrested or was about to
arrest Lashley and therefore Lashley must be deprived of the defence that the act was not intentional.
That is not the Crowns case. The Crowns case is that Hannibal, whilst standing at the corner of
James and Hunter Streets, was without warning, without the simplest or any legal provocation,
suddenly and treacherously attacked by the accused with a cutlass.
For the purpose of the Crowns case, forget if you wish that Hannibal was a policeman, or assume
that he was a policeman making an unlawful arrest. A policeman is protected to the extent as
explained if the arrest is lawful. Assuming that in this case it was a wrongful arrest, what the Crown
say is that there was nothing whatsoever to justify this attack. What Lord Denning says is that if the
arrest is wrongful, you can resist it by force, and if an unintentional death results through more force
than is necessary, then it is only manslaughter because the police constable was acting wrongfully.
But the Crowns case is that this was an intentional killing; not resisting an arrest, but an act of
revenge because his cycle had been taken to the station. That is the Crowns case. I must apologise
for digressing in that way. I have done so in deference to Counsels speech. He never really laid the
foundation during the trial for such a defence. The accused has not said that he killed Hannibal
unintentionally while resisting an arrest. Of course, the accused can rely on a defence which might be
open to him without saying so if from the facts you think it is a reasonable inference to draw. But can
you draw that as a reasonable inference in this case?
The Crown do not say the accused killed Hannibal while resisting lawful arrest, nor has the
accused said he killed while resisting unlawful arrest, but if you think I have omitted some part of the
evidence and you think it is a reasonable inference to draw that on that afternoon Hannibal was
attempting 108 to arrest Lashley unlawfully, or if you have a reasonable doubt about it, then of course
you are entitled to consider that aspect of the case and to apply the law which I have just told you, the
law being that a man is entitled to resist an unlawful arrest, and that if he used more force than is
necessary the offence is reduced from murder to manslaughter.
We are unable to agree with counsel for the appellant either that the trial judge did not leave this issue
to the jury or that his direction thereon was not adequate. Counsel cited to us certain passages in Russell
On Crime (11th Edn) at pp 486 and 487 where the older views of the law on this aspect of the matter are set
out but omitted to refer to the existing law in that connection as correctly set out at p 511 of the same book.
Counsel also submitted that the trial judge misdirected or did not adequately direct the jury as to the law
of insanity and its application to the appellants defence. We will say at once that in our opinion the trial
judge adequately explained to the jury the standard of proof required of the defence on the issue. Counsel
made bold to contend that if a trial judge did not explain to the jury the standard of proof on the issue of
insanity in the identical terms as it has been stated in Sodeman v R ([1936] 2 All ER 1138, 80 Sol Jo 532,
PC, 14 Digest (Repl) 62, 256) it would be not only a misdirection but a fatal one. It has, however, been

stated over and over again that there is no set formula for directing a jury on the burden or the standard of
proof.
On the issue of insanity the trial judge told the jury:
Now, members of the jury, lastly I want to deal with insanity. The law is that every person of the
age of discretion is, unless the contrary is proved, presumed by law to be sane and to be accountable
for his actions. The law provides that on a trial of a criminal charge like this if you come to the
conclusion that the act which caused the death of the deceased was done by the accused, but that he
was insane at the time of the act which caused the death, then you are entitled to return what is known
as a special verdict of guilty but insane. You do not find him not guilty, but guilty but insane. This is
how the section reads. It is put much better than I explained it to you just now.
Where in an indictment any act or omission is charged against any person as an offence, and it is
given in evidence on the trial of that person for that offence that he was insane, so as not to be
responsible, according to law, for his actions at the time when the act was done or the omission made,
then, if it appears to the jury before whom the person is tried that he did the act or made the omission
charged, but was insane as aforesaid at the time when he did or made it, the jury shall return a special
verdict to the effect that the accused person was guilty of the act or omission charged against him, but
was insane as aforesaid at the time when he did the act or made the omission.
The onus, the burden of proving insanity where it is raised is on the accused. The burden of proof
which rests upon the prisoner to establish this defence is not as heavy as that which rests upon the
prosecution to prove the facts they have to establish. The prosecution must prove their case beyond a
reasonable doubt. The prisoner will discharge the burden of proving insanity by evidence satisfying
you of the probability of insanity at the material time. That is called by evidence of the balance of
probability.
In order to decide whether the accused was insane at the time of committing the act or not, you will
have to be guided by certain rules laid down since 1843. In the year 1843 in England, a man named
McNaghten was indicted for the murder of a certain person, and he put up a defence of insanity. He was
acquitted on the ground of insanity. In those days that was a defence. There was no question of a special
verdict. He would have to be acquitted. 109He was acquitted on the ground of insanity. His acquittal gave
rise to so much discussion that certain questions were submitted to the judges, and they were asked to
answer those questions, and those questions and answers have now come to be known as the McNaghten
rules. Since then all judges are guided by those rules when directing juries on the question of insanity.
In 1957 there was some change in England with regard to those rules, but that is not the law here.
Those rules are still applicable to the law with regard to this country, and I can think of no better way of
directing you with regard to the question of insanity but the McNaghten rules.
Every man is to be presumed to be sane, and to possess a sufficient degree of reason to be
responsible for his crimes, until the contrary be proved to their satisfaction; to establish a defence on
the ground of insanity it must be clearly proved that, at the time of committing the act, the accused was
labouring under such a defect of reason, from disease of the mind, as not to know the nature and
quality of the act he was doing, or, if he did know it, that he did not know he was doing what was
wrong...
If the accused was conscious that the act was one that he ought not to do, and if that act was at the
same time contrary to the law of the land, he is punishable.
The question for the jury, therefore, is whether the accused had a sufficient degree of reason to
know that he was doing an act that was wrong.
Let me read that again:
The trial judge then repeated the McNaghten rules to which he had already referred.
The trial judge then analysed the evidence given on this issue and told the jury:
Let me read a passage from a textbook on crime which I would like to adopt:
It has repeatedly been explained that the function of the court and the jury in cases where insanity
is pleaded in defence, is not to decide whether the prisoner is insane (that is not your function) but
whether the prisoner is or is not in law criminally responsible for his deed.
As I have pointed out to you by those McNaghten rules,
To establish a defence on the ground of insanity it must be clearly proved that, at the time of
committing the act, the accused was labouring under such a defect of reason, from disease of the
mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not
know he was doing what was wrong.
Not what happened to him in 1933, but what took place in 1958.

Counsel contended that the trial judge failed to invite the jury to consider on the issue of insanity what
he termed exciting factors existing prior to the act of killing by the appellant, that is to say, the intoxicated
state of the appellant, threat of imprisonment by the deceased, sudden excitement, provocative words and
blows on the appellants head.
The summing up on the issue of insanity reveals that the trial judge left all of these matters as questions
of fact for the consideration of the jury. Counsel also contended that the trial judge in his summing up
misdirected the jury by referring to certain passages from a medical textbookWoodman And Tidys Forensic
Medicinewhich did not form any part of the evidence at the trial and were not specifically accepted as true
by any of the medical witnesses in the case. On reference to the evidence on the record given by Dr
Nicholson at the trial it is seen that in answer to counsel for the appellant Dr Nicholson said:

110
I know Woodman and tidy on forensic medicine, p 868. I agree with what the author says at p 868
under symptoms of feigned and true insanity item 5. I agree with items 6, 8, 9 and all the items under
that head. I see pp 829-830.
Counsels contention that Dr Nicholson did not read or adopt as his opinion what was stated at item 1 by the
author is quite unfounded in view of the words in italics in the extracted passage and we do not appreciate
his contention that the word all in that phrase means some.
Criticism was also made that the trial judge placed undue emphasis on the evidence given by Dr
Grandsoult who was called in rebuttal by the Crown on the issue of insanity. We are unable to agree with
the criticism of counsel. We have carefully examined the direction given to the jury by the trial judge on the
issue of insanity in the light of the above and the other criticisms made by counsel and are of the opinion
that that direction was not only adequate but very full and fair.
While there was considerable evidence given on the issue of the appellants mental condition in 19331935 from which it might be inferred that he was insane during that period, in our opinion the evidence given
or elicited as to the appellants mental condition at the time of the killing of Hannibal fell far short of that
required of the defence to show that the appellant was at that time insane.
Counsel next submitted that the full and fair presentation of the defence was prejudiced because:
(A) The learned trial judge frequently interrupted counsel for the defence throughout the trial,
thereby hampering defence counsel in the fair presentation of the case for the defence, and by
unjustified, unfounded, and disparaging remarks about defence counsel and his conduct of the case,
biased the mind of the jury against the defence.
For example:
(i) The remark If you are after cheap publicity you are going to get it not the kind you want, or
words to that effect.
(ii) At the close of the appellants case, just as defence counsel had finished asking the witness Dr
Wharton his last question, the learned trial judge interjected, You are wasting the courts time Defence
counsel replied, My Lord, Dr Nicholson, whereupon the learned trial judge remarked, Do not answer
me.... I will not tolerate any impertinence from youyou are incompetent and inexperienced.... you
ought not to have undertaken the defence of this case.
(iii) The remark that the mistakes you have made have been the result of your acting on advice or
words to that effect.
(iv) The remark You have established evidence of insanity in 1933 but you have not established
insanity in 1958 or words to that effect.
(v) The remark that You would not take my advice as to how you must prove insanity, you continue
to prove insanity in 1933 although I have told you before that you have to prove insanity in 1958 or
words to that effect.
(B) The learned trial judge asked questions which far from clarifying any matter of doubt went further
and were calculated to prejudice the case for the defence and to strengthen and/or did strengthen the case
for the Crown, thereby identifying himself with the prosecution.
For example:
(1) The learned trial judge asked the witness Fortune whether he would be sane or insane if he
were to attack the Marshal of the Court with a cutlass.

111
In respect of the remark referred to at A (i) above counsel in answer to us at first sought to impress upon
us that this remark was made by the trial judge after the trial had commenced and the jury had been sworn,

but later stated that that remark had been made on a day previous to the commencement of the trial when
the case was called and adjourned to a later date on the application of the Crown, no jury being yet
empanelled. The Solicitor-General who was not present on that occasion was not able to state what in fact
had occurred and this court did not think it necessary that the report of the trial judge should be obtained in
view of the fact that in any event whether or not justified by the circumstances such a remark directed to
counsel some days prior to the commencement of the trial could not be regarded as prejudicial to the fair
trial of the appellant.
In respect of the remarks referred to at A (ii) to (v) inclusive counsel conceded that he had made no note
himself of what the trial judge had stated but contended that the remarks of the trial judge in that respect
might have conveyed the impression to the jury that the defence had failed or was failing on the issues it had
raised. We are unable to appreciate that any such conclusion could have been drawn by the jury even if the
words alleged to have been used by the trial judge were in fact used by him. Any remarks by the trial judge
to counsel for the appellant who also appeared for the appellant at the trial must be considered in the light
that counsel had only recently been called to the Bar and had been admitted to practice in the Supreme
Court of this colony in July 1958, just three months before the trial commenced. Further, this, as counsel
stated to us, was his first appearance as counsel in a criminal trial on indictment.
The trial judge in his summing up said when dealing with the issue of insanity that he had told defence
counsel over and over again how insanity should be proved. It would appear that the trial judge was
endeavouring during the course of the trial to assist a somewhat inexperienced counsel in the conduct and
presentation of his case.
In this Colony at criminal trials the trial judge records the evidence in longhand. Only his summing up is
required to be taken down in shorthand. There are no means by an examination of the record to ascertain
how often and in what regard or for what purpose a judge has interrupted counsel during his conduct of a
case. Counsel for the appellant has been unable to impress us that in fact he was unduly interrupted in the
conduct of the trial. The manner in which counsel presented his arguments on this appeal necessitated
many interruptions on our part in order that we could understand and appreciate the points he was seeking
to make. We would not be surprised therefore if the trial judge had of necessity for a similar reason
frequently to interrupt counsel in the course of the conduct of the trial.
In respect of the sub-head B of this ground of appeal we are of the opinion that counsels contention
thereunder is wholly without substance.
Counsel next submitted that the trial judge misdirected or did not adequately direct the jury on certain
portions of the evidence in the case.
We have examined the various portions of evidence referred to by counsel on this ground of appeal.
Counsel has failed to show us that there has been any misdirection on the evidence which is of such a
nature that in the circumstances of the case it was reasonably probable that the jury would have returned a
different verdict had there been no misdirection. Certain portions of evidence have been related to the jury
in their substance and effect and not in the identical words used by the particular witness but we do not see
any real or substantial misdirection on the evidence.
Counsel next submitted that the trial judge did not direct the jury sufficiently or at all on the
inconsistencies in the evidence of the witnesses for the prosecution and the effect thereof on their credibility.
After examination of the evidence referred to by counsel in this regard we find that this point is without merit.

112
Lastly it was submitted by counsel that the trial judges summing up by implication did not leave all the
questions of fact for the jury.
In the course of his summing up the trial judge told the jury:
Any question of fact is entirely one for you, not for me. Any comment or comments I make on the
facts may be ignored by you unless you think the comment reasonable and wish to adopt it as your
own. Your duty is to consider the facts and then, having regard to the lawas I will explain it decide
whether the facts you find justify a verdict of guilty or not guilty of murder, or of some lesser offence, or
of some special verdict.
Nowhere in the summing up have we been able to find any indication that at any stage the trial judge
endeavoured to withdraw the decision on any question of fact from the jury.
Counsel contended that the trial judge placed undue emphasis on the Crowns case and failed in his
summing up to give sufficient weight to the case for the defence.
When the summing up is read as a whole it is patent that this criticism is without foundation. In our
opinion all the issues raised at the trial were left to the jury with an adequate and indeed full and fair
direction thereon.
A further ground of appeal relating to provocation was with leave of the court added at the hearing of
this appeal to the grounds of appeal filed. This further ground was argued together with the second of the
grounds of appeal filed and has already been dealt with under that head.

On all grounds this appeal fails.

The appeal is dismissed and the conviction affirmed.
Appeal dismissed.

(1959) 1 WIR 113

Gordon v Alves
FULL COURT OF THE SUPREME COURT OF BRITISH GUIANA
HOLDER CJ AND PHILLIPS J
16 JANUARY, 9 FEBRUARY 1959

Summary Jurisdiction Procedure Trial of several charges appearing to arise out of the same
circumstances at one and the same time All parties consenting thereto Whether specific illegality
Summary Jurisdiction (Procedure) Ordinance, Cap 15 [BG], s 28.
Section 28 of the Summary Jurisdiction (Procedure) Ordinance, Cap 15 [BG], provides as follows:
Where two or more complaints appear to arise out of the same circumstances the court may, if it
thinks fit, and if all the parties consent, hear and determine the complaints at one and the same time.

Held: (i) The objects of this section are to save time and expense and to make for speedy trials in summary
cases.
(ii) The section is wide enough in its terms to include cross-charges which may arise out of the same
circumstances and a person may at the same trial be a complainant and a defendant.
(iii) The section does contemplate that not only may there be cross-charges but that witnesses may also be
defendants; and it contemplates cases (such as 113 in the present case) where in one incident a number of
persons are involved but not to the same criminal extent or in varying degrees of criminal blame.
(iv) There is a discretion vested in the magistrate to whom, even though all the parties consent, it may not
appear just to allow the cases to be heard at one and the same time.
(v) A joint hearing cannot take place without the consent of all the parties. Dictum of Lord Coleridge CJ, in
Dixon v Wells (3), 38 WR at p 607, applied.
Appeal dismissed.
Cases referred to
R v Grant [1944] 2 All ER 311, 30 Cr App Rep 99, CCA, 2nd Digest Supp
R v Sharrock [1948] 1 All ER 145, 112 JP 162, 32 Cr App Rep 124, 2nd Digest Supp
Dixon v Wells (1890), 25 QBD 249, 59 LJMC 116, 62 LT 812, 54 JP 725, 38 WR 606, 6 TLR 322, 17 Cox,
CC 48, DC, 33 Digest 328, 410
Appeal
Appeal. The appellant and two other persons Braithwaite and Medas were involved in an altercation as a
result of which they were all charged by the police with the offence of disorderly behaviour and the appellant
was also charged by the police with the offence of assault causing actual bodily harm to Braithwaite. By the
consent of all the parties these summary charges were all tried at one and the same time. The appellant
and Medas were convicted of disorderly behaviour and the appellant was also convicted of assault causing
actual bodily harm. The charge against Braithwaite was dismissed.
At the hearing the parties were represented by counsel. The defendant Braithwaite and a woman
named Taylor gave evidence for the prosecution and were cross-examined by counsel while Medas, the
appellant and a witness one May Darrell called by the appellant gave evidence for the defence and were
cross-examined by the police prosecutor.

LFS Burnham (instructed by Crown Solicitor) for the appellant

RMF Delph for the respondent
Cur adv vult.
PHILLIPS J delivered the judgment of the court: At 5 pm on 20 May 1958, at Lot 17-17 Norton Street,
Georgetown, there occurred, it was alleged, some disorderly behaviour. As a result PC Leslie Alves charged
1. Leon Braithwaite, 2. Gavin Medas, and 3. Benjamin Gordon, the appellant, with the offence of disorderly
behaviour contrary to s 136 (a) of the Summary Jurisdiction (Offences) Ordinance, Cap 14 [BG].
During the course of this disorderly conduct it was alleged that Benjamin Gordon (the appellant) had
struck Leon Braithwaite on his head with a bottle causing him actual bodily harm. PC Leslie Alves therefore
laid another charge against the appellant Benjamin Gordon for this more serious offence.
By consent of all the parties, pursuant to s 28 of the Summary Jurisdiction (Procedure) Ordinance, Cap
15 [BG], both these charges were tried at one and the same time.
The section is as follows:
Where two or more complaints appear to arise out of the same circumstances the court may, if it
thinks fit, and if all the parties consent, hear and determine the complaints at one and the same time.
The appellant was convicted of the offence of assault occasioning actual bodily harm (s 30 (a) of the
Summary Jurisdiction (Offences) Ordinance, Cap 14 [BG]) and fined $20 and costs $4 and in default of
payment to undergo one months imprisonment. On the complaint of disorderly behaviour, Leon 114
Braithwaite (the injured man) was acquitted, but the appellant (Benjamin Gordon) and one Gavin Medas
were convicted and reprimanded and discharged.
Against these convictions the defendant Benjamin Gordon has appealed.
The grounds of appeal are as follows:
(1) That a specific illegality was committed when on the joint trial of the defendants Braithwaite,
Gordon and Medas, Braithwaite the No 1 defendant was called as a witness for the prosecution.
(2) That inadmissible evidence was admitted when the learned Magistrate allowed the evidence of
the No 1 defendant Braithwaite to be given against the other two defendants Gordon and Medas
before the case for the prosecution had been closed.
(3) That upon the exclusion of the inadmissible evidence given by Braithwaite the remaining
evidence is insufficient to sustain the conviction against Gordon.
At the hearing of the appeal, leave was granted to the appellant to argue an additional ground of appeal,
namely:
(4) That the judgment was such that the Magistrate viewing the circumstances reasonably could
not properly have so decided.
At the trial the parties were represented by counsel.
From the record of appeal it would appear the trial proceeded in this way:
(1) Gladys Taylor first gave evidence and was cross-examined by counsel for the defendants.
(2) Leon Braithwaite (the injured man) next gave evidence. He was cross examined also by
counsel.
(3) Gavin Medas also an accused person on the disorderly behaviour charge, gave evidence and
was cross-examined by the Prosecutor.
The appellant
(4) Benjamin Gordon then gave evidence and was cross-examined by the Prosecutor.
Then the last witness was
(5) May Darrell apparently a witness for the appellant, gave evidence and was cross-examined by
the Prosecutor.
The parties took their chances of a decision on the merits and the appellant now complains of an
irregularity occurring at the trial.
In his reasons for decision the Magistrate stated that he found as a fact that:
On 20 May 1958, Leon Braithwaite and Herod went to the home of the defendant Gordon. They
met Gordon and Medas. There were some arguments. Braithwaite and Herod left the room.
Braithwaite realising that he left his hat returned and asked Gordon for it. Gordon invited him into the

room. As soon as he entered the room Gordon gave him a lash with a stick. Medas pushed
Braithwaite down the steps. Gordon struck him with a bottle.
The defendants defence was that Braithwaite and Herod attacked him in his house and dealt him
several blows about his body.
I did not believe the defendant or his witnesses owing to their demeanour. Moreover the defendant
admitted that he struck Braithwaite.
There is ample evidence from which the Magistrate could conclude that those facts had been proved
and established.
In our view the Magistrate was justified in convicting the appellant on the merits.
Counsel for the appellant submitted that on the authority of R v Grant ([1944] 2 All ER 311, 30 Cr App
Rep 99, CCA, 2nd Digest Supp) and R v Sharrock ([1948] 1 All ER 145, 112 JP 162, 32 Cr App Rep 124,
2nd Digest Supp) it was not competent for the prosecution to call as witnesses persons who were
themselves concerned in the charges and that it was 115 not in accordance with the fair administration of
the criminal law that men who are charged with the same offence should be called to give evidence for the
prosecution against their co-defendants at the same trial.
Counsel for the appellant further argued that though all the parties had consented for the cases to be
tried together such consent, as in the procedure of trials on indictments, went so far and no furtherviz that
parties consented to the joinder of the charges or counts in one indictment.
He contended that the consent of the parties could not be regarded as consenting to an irregularity of
such a nature and a breach of a fundamental principle in the administration of the criminal law.
And finally that in any event a party cannot consent to an irregularity in a criminal trial.
On the other hand, counsel for the Crown contended that the Ordinance makes this procedure only
possible by the consent of all the parties and the parties did consent for the cases to be tried at one and the
same time; that in any event that the virtual complainant Braithwaite was not a co-defendant with the
appellant on the charge of assault occasioning actual bodily harm and that if there was a specific illegality it
would only affect the disorderly behaviour charge.
He further submitted that by s 9 (k) of the Summary Jurisdiction (Appeals) Ordinance, Cap 17 [BG], a
specific illegality, if such it is, can only be made a ground of appeal if it substantially affects the merits of the
case, which he submitted was not the case here as the evidence of the independent witness Gladys Taylor,
if believed, was sufficient to support the conviction.
To this argument, in rejoinder, counsel for the appellant submitted that it could not be known to what
extent the evidence of Leon Braithwaite contributed to the acceptance of the evidence of that independent
witness, Gladys Taylor.
The question for decision therefore is what is the effect of the consent by the parties pursuant to the
statutory provisions on the principle that one co-defendant cannot be called to give evidence for the Crown
against the other at the same trial.
In the case of an indictment against two or more prisoners one may give evidence for the Crown against
a co-prisoner only in the following cases:
(1) Where a nolle prosequi has been entered.
(2) Where a verdict of acquittal has been given.
(3) Where the prisoner in question has pleaded guilty on arraignment or during trial.
(4) Where though jointly indicted he is not being tried with the prisoner against whom he is giving
evidence.
Can it be said there is a 5th category, ie in summary trials where the parties consent to their cases being
tried at one and the same time, by virtue of the statutory provision herein?
There has been no previous decision on this point and we have been told that the practice has long
continued but that it has in many instances operated unfairly to an accused person.
Firstly, the object of the section is for the purpose of convenience, to save time and expense and to
make for speedy trials in summary cases.
Secondly, the section is wide enough to include cross-charges which may arise out of the same
circumstances and that one may in the same trial be a complainant and at the same time a defendant
certainly not the usual circumstances in an ordinary criminal trial.
Thirdly, the section does contemplate, that not only may there be cross charges but that witnesses may
also be defendants: and contemplates cases (such as in the instant case) where in one incident a number of
persons are 116 involved but not to the same criminal extent or in varying degrees of criminal blame.
Fourthly, the discretion is left to the Magistrate, to whom, even though all the parties consent, it may not
appear just to allow the cases to be heard at one and the same time.
And finally, such a joint trial cannot take place without the consent of all the parties.

It would seem to us that in many cases contemplated by the section the calling of a witness for the
prosecution who is also a co-defendant in one or other of the cases is inevitable.
In Dixon v Wells ((1890), 25 QBD 249, 59 LJMC 116, 62 LT 812, 54 JP 725, 38 WR 606, 6 TLR 322, 17
Cox, CC 48, DC, 33 Digest 328, 410) it was held by Lord Coleridge, CJ (38 WR at p 607):
[that where in cases] there was no protest on the part of the person who was charged before the
Magistrates, and it was held that rules of procedure are rules which the person sought to be affected
may waive if he appears and elects to take the chances of a trial. That is an old and sound rule, and I
should be sorry to depart from it.
The appellant herein made no objection at the trial.
The course is always open to a defendant to decline to give his consent or to bring the matter to the
attention of the Magistrate who in exercising his discretion would not be unmindful of this fundamental
rule.
We have come to the conclusion that the statute makes an exception to the rule with the necessary
safeguard of the exercise of the discretion of the court, even if the parties all give consent for the cases
to be tried at one and the same time.
The appeal is therefore dismissed with costs fixed at $25.

Appeal dismissed.

(1959) 1 WIR 117

Charles James v R
SUPREME COURT OF BRITISH GUIANACOURT OF CRIMINAL APPEAL
HOLDER CJ PHILLIPS AND LUCKHOO JJ
30 JANUARY, 4 FEBRUARY, 20 MARCH 1959

Criminal Law Inadmissible evidence Accidental disclosure by witness of previous bad character of
accused Accused told by trial judge of his right to apply for discharge of jury Accused elects not to make
application but to proceed with the trial No duty on trial judge to discharge jury and to order a fresh trial.
Criminal Law Evidence Comment by trial judge on failure of accused to give evidence Discretion of
trial judge.
The appellant was indicted for burglary. During the course of the trial a witness for the prosecution blurted
out certain words to the effect that the appellant was a known thief. The trial judge thereupon informed the
appellant who was undefended of his right to apply for the trial to be stopped and advised the appellant to
apply to have the trial stopped. The appellant nevertheless elected to have the trial proceed. The trial judge
in his summing up commented on the appellants failure to give evidence on oath. The appellant was
convicted and appealed against conviction on the ground that the trial judge should have stopped the trial
when the witness for the prosecution blurted out 117 the offending words and on the further ground that the
comment by the trial judge on his failure to give evidence on oath was unfair.
Held (Phillips J, dissenting): (i) The trial judge having informed the appellant of his right to apply for the trial
to be stopped did not err in not stopping the trial after the appellant had elected not to make such
application. R v Featherstone (2) followed.
(ii) The trial judges comments on the failure of the appellant to give evidence on oath was, in the
circumstances of the case, not unfair to the appellant and there was no ground for interfering with the
exercise of the trial judges discretion in making the comments. Kops v R (3), R v Rhodes (4), R v Voisin (5)
and Waugh v R (6) considered.
Appeal dismissed and conviction upheld.
Editorial Note. As to discharge of jury in the course of a trial, see 10 Halsburys Laws (3rd Edn) 426, 427,
paras 786, 787; and for cases see 14 Digest (Repl) 346-348, Nos 3344-3379; 2nd Digest Supp. As to trial

judges comments on the failure of accused to give evidence, see 10 Halsburys Laws (3rd Edn) 424, para
780; and for cases see 14 Digest (Repl), p 341, Nos 3314-3317, and 2nd Digest Supp.
Cases referred to
R v Firth [1938] 3 All ER 783, 26 Cr App Rep 148, CCA, Digest Supp
R v Featherstone [1942] 2 All ER 672, 168 LT 64, 107 JP 28, 59 TLR 30, 87 Sol Jo 103, 41 LGR 72, 28 Cr
App Rep 176, CCA, 2nd Digest Supp
Kops v R, Ex p Kops [1894] AC 650, 64 LJPC 34, 70 LT 890, 58 JP 668, 10 TLR 525, 6 R 522, PC, 14
Digest (Repl) 341, 3313
R v Rhodes [1899] 1 QB 77, 68 LJQB 83, 79 LT 360, 62 JP 774, 47 WR 121, 15 TLR 37, 43 Sol Jo 45, 19
Cox, CC 182, CCR, 14 Digest (Repl) 341, 3314
R v Voisin [1918] 1 KB 531, 87 LJKB 574, 118 LT 654, 34 TLR 263, 62 Sol Jo 423, 26 Cox, CC 224, 13 Cr
App Rep 89, CCA, 14 Digest (Repl) 341, 3318
Waugh v R [1950] AC 203, 66 (pt 1) TLR 554, PC, 15 Digest (Repl) 973, *5961
R v Fripp, R v Jones (1942), 29 Cr App Rep 6, CCA, 2nd Digest Supp
Stirland v Public Prosecutions Director [1944] 2 All ER 13, [1944] AC 315, 113 LJKB 394, 171 LT 78,
109 JP 1, 60 TLR 461, 88 Sol Jo 255, 42 LGR 263, sub nom R v Stirland, 30 Cr App Rep 40, HL, 2nd
Digest Supp
Appeal
Appeal. The appellant was convicted before Stoby J, at the Demerara Criminal Sessions on 15 October
1958, of burglary and was sentenced to five years imprisonment. He appealed against his conviction on
several grounds, inter alia that the trial judge erred when he failed to stop the trial when a witness for the
prosecution inadvertently blurted out in evidence words to the effect that the appellant was a known thief,
and that the trial judges comment on his failure to give evidence was unfair.
Appellant in person.
E A Romao Crown Counsel (instructed by Crown Solicitor) (for the Crown)
Cur adv vult.
LUCKHOO J (HOLDER CJ concurring). The appellant was convicted at the Demerara Sessions on 15
October 1958, upon an indictment charging him with burglary, contrary to s 233 of the Criminal Law
(Offences) Ordinance, 118Cap 10 [BG], and was sentenced to imprisonment for five years. From this
conviction he has appealed.
The case for the prosecution was to the effect that between 7.15-7.30 pm on 3 April 1958, the appellant
was seen by Police Constable Ogle and by Detective Constable Sharma on the Albouystown Public Road
holding a Raleigh bicycle with cycle badge 33319 of 1958 attached. He then rode the bicycle south along
Albouystown Public Road into La Penitence Public Road, then east into Alexander Village followed by
Sharma who saw him dismount in Second Street, Alexander Village, and speak to a man. The appellant
then rode to Duncan Street, Kitty, where he entered a house, changed his clothing and then rode to Second
Street, Alexander Village, reaching there at about 1.15 am Constables Ogle, Sharma and Babb went into
ambush on the northern side of Second Street about 15 yards from a house on the southern side occupied
by one Mangri. The accused then walked up the front steps of Mangris house which appeared to be closed
and was in darkness and later came downstairs, went to the back steps and pushed the door, returned
downstairs and rode his bicycle west in Second Street. He then dismounted and leaned the bicycle against
a lantern post, locked it and walked to Mangris house. He walked up the back steps, pulled at the eastern
window which opened and pushed his hand through the window into the house. Thereafter the back door
was seen to open and the appellant entered the kitchen. A noise was then heard as if a bucket had fallen in
the kitchen and the appellant was seen to jump through the western kitchen window into the yard and run
along Second Street into a yard in which P C Babb had gone into ambush. There P C Babb held him by the
wrist but the appellant drew something from his pocket which Babb believed to be a weapon and the
appellant managed to free himself and was pursued by Babb, Sharma and Ogle, but made good his escape.
A report was made by Sharma at Ruimveldt police station and later the police returned to Mangris
house. Neither Mangri nor her granddaughter had been awakened by the appellants entry into her house.
Mangris husband who is employed as a watchman was at that time away from home. One of the two
kitchen windows was found to be defective and it was found possible for the fingers to be inserted in a
crevice under the window reaching to a wire securing that window. That wire which Mangri had put in
position securing the window on the evening of 3 April 1958, was found broken on the arrival of the police
after the appellant had made good his escape.

The other window and the kitchen door were also found open and a bucket which had been placed on a
box earlier that night was found on the floor. The kitchen door had been fastened by Mangri earlier that
night with a chain.
The bicycle Ex C which the appellant was seen to lock and place against a lantern post in Second
Street prior to his entry into Mangris house was taken by the police to the police station, the badge number
being 33319 of 1958. On 4 April 1958, at 4.30 pm the appellant made a report at Kitty police station that his
gents sports model bicycle, makers name and number unknown, had been stolen from his residence at lot
10, Sheriff Street, Campbellville, between 11 pm on 3 April 1958, and 9 am on 4 April 1958. The bicycle Ex
C was later identified by Shirley James, widow of the appellants deceased brother, Sergeant of Police
James, as having been sold and delivered by her in November 1957, to the appellant, it having previously
been the property of her deceased husband.
A warrant of apprehension for the appellant in connection with this matter was sworn to by PC Ogle on
6 April 1958, but the appellant was not located and arrested until 15 May 1958.
The case for the appellant was to the effect that he was from 9 pm to 10.30 pm on 3 April 1958, in Robb
Street; that he then went to his home at 10, Sheriff Street where he resided with a friend and remained there
from 11910.30 pm, 3 April 1958, until 10 am on the following day and that he discovered that his bicyclenot
Ex Cwhich he had locked on the previous night and left under his house was missing. After making a
search for it without success he reported the loss to the police at Kitty police station. On the following day
he returned to that station and enquired whether the bicycle had been recovered.
At the trial and at the hearing of this appeal the appellant contended that the police constables Ogle and
Sharma had framed him, conniving together and concocting evidence that he, the appellant, had been
seen by them breaking and entering into Mangris house on that night of 3 April 1958.
The accused was unrepresented by counsel both at the trial and at the hearing of this appeal. Several
grounds of appeal were argued before us by the appellant but as this court intimated at the hearing all but
two of those grounds were without substance.
The first of the two grounds of any substance was that the trial judge erred when he failed to stop the
trial and order a fresh trial when accidental disclosure was made by a witness for the prosecution during the
trial of the previous bad character of the appellant. From an examination of the record of appeal and from
the argument of the appellant before this court it is apparent that the appellant has a very good knowledge of
police methods and procedure. During the course of his cross-examination of PC Ogle the appellant asked
Ogle if he had sent out an all-stations message. In reply Ogle stated that he did cause an all-stations
message to be sent asking that if appellant is seen in any district he be apprehended. Further questions in
cross-examination were put to this witness by the appellant in respect of the all-stations message and later a
witness Edward Lee who on 4 April 1958, was telephone clerk at Ruimveldt police station was called to
testify that he had sent out the all-stations message in question.
Lee had not given evidence at the preliminary inquiry and prior to his being called to give evidence at
the trial a copy of the evidence proposed to be given by him in the form of a statement by Lee was duly
served by the Crown on the appellant and on the Clerk of Court. From an examination of that statement it is
clear that the prosecution sought only to establish that an all-stations message had in fact been sent on the
morning of 4 April 1958, for the apprehension of the appellant. Before the witness was examined by the
Crown Prosecutor the appellant objected to the admissibility of his evidence on the ground that it would be
prejudicial to the appellant. The trial judge quite rightly overruled the appellants objection and told him that
if the witness were asked any question which would not be admissible or would be irrelevant he (the trial
judge) would rule at the proper time. The witness was then examined by the Crown Prosecutor and after
stating that he had sent an all-stations message on 4 April 1958, blurted out the part of the contents of that
message, Let Charles James a known thief...
It is common ground that the trial judge immediately intervened and informed the appellant that it was
his duty to tell him that it was his right to have the trial stopped. Thereupon the appellant informed the trial
judge that he did not want the trial to be stopped and that he would rely on the integrity of the jury. The trial
then proceeded.
The trial judge in his summing up on this aspect of the matter told the jury:
Before I summarise the points and conclude, just let me refer to an incident which took place
during the trial. You will remember the evidence of the witness Edward Lee. Edward lee was called as
a witness by the Crown. The way he came to be called was like this. The accused, you remember,
had suggested that no all-stations message had been sent out, and Ogle was insisting that he had
sent out a message and in the morning. 120He also said that the way all-stations messages are sent
out is this: The constable gives it to the telephone clerk and then he sends out that message.
As I pointed out to you when dealing with the station diary, that all-stations message book cannot
be produced by the Crown as evidence. The accused looked at it, asked that it be produced, and then
decided he did not want it produced; so the Crown did not produce it. But it was important, in view of
what Constable Ogle had said about a message being sent in the morning, to find out when the

message was sent, and the only person to give it would be the person who sent it. The person could
look at the book and refresh his memory. Mr. Massiah handed Lee the book and asked him to refresh
his memory, and Lee blurted out something. He is no longer a policeman. He has been attached to a
police station just as other policemen are attached. He was once a policeman, and it may well be the
mere fact of once being a policeman does not entitle you to be believed. He now works at Motor
Transport Ltd.
Lee said in his evidence that he sent out an all-stations message about 4.45 pm and that was the
real object of calling Lee, but Lee blurted something about the accuseds past, and you heard me say
at the time that the trial must be stopped. The law is, when an accused person is tried you have
nothing at all to do with his past. He stands before you an innocent person. He stands before you
without blemish, and you are to consider the case against him in that way, and on the evidence only,
and the prosecution cannot bring out purposely or by accident anything about a mans past.
You heard me advise the accused after I had taken the trouble to consult the law on the subject. I
advised the accused that the trial could be stopped because the law is that where an accused person
is represented by counsel and the accuseds past is disclosed, then counsel might elect to continue
the case. He might say, Irrespective of that I want to go on with the case. But where the accused
person has no one to advise him, the judge must give him as much help as possible. In the exercise
of my duty I advised the accused to have the case stopped. You heard him ignore my advice and ask
to have the case continued. That is his right, if he wants the case to go on. That incident must not be
used in his favour. You must not say, Poor fellow ! The witness has brought out this and tried to do
him harm. I am going to acquit him because of that. Or, you must not say, The man has a past. He
must be guilty, that is why the police followed him. You are not to adopt that attitude. Ignore that
incident, and if you do that, that is the proper way in which you should approach the consideration of
the case.
The appellant has contended before us that the trial judge should have stopped the trial when Lee
blurted out the offending words and should not have left it to the appellant to decide whether or not he
wanted the trial to be stopped more especially as he was undefended.
In R v Firth ([1938] 3 All ER 783, 26 Cr App Rep 148, CCA, Digest Supp), where the appellant was
convicted on indictment before a jury, accidental disclosure of a previous conviction of the appellant was
made during the course of the trial. The appellant was represented by counsel who made an application for
a new trial which was refused by the trial judge. On appeal to the Court of Criminal Appeal it was held that
in those circumstances it was the duty of the judge to begin the trial afresh before a new jury. Lord Hewart
LCJ, in delivering the judgment of the court said (26 Cr App Rep at p 153):
It is not very profitable or satisfactory to enter on the sphere of inquiries with regard to the precise
effect which may be produced on the mind of a jurorand still less on the minds of a collection of jurors
by a piece of evidence, but the principle laid down by this court is that, where an irregularity manifestly
takes place, then there ought to be an end of the trial in 121 that form. It seems to us in a high degree
dangerous to permit the trial to continue to its end where such an irregularity has occurred as that
which here was inadvertently permitted.
In R v Featherstone ([1942] 2 All ER 672, 168 LT 64, 107 JP 28, 59 TLR 30, 87 Sol Jo 103, 41 LGR 72,
28 Cr App Rep 176, CCA, 2nd Digest Supp) where the appellant was undefended a similar accidental
disclosure of a previous conviction of the appellant was made during the course of the trial. The Deputy
Chairman did not inform the appellant of his right to apply to have the trial stopped and a fresh trial to begin
before a new jury. The trial proceeded and the appellant was convicted. On appeal to the Court of Criminal
Appeal the court in the course of its judgment delivered by the Lord Chief Justice referred to the passage in
R v Firth ([1938] 3 All ER 783, 26 Cr App Rep 148, CCA, Digest Supp) (ubi supra) set out above and after
stating that it was in agreement with the court in that case said (28 Cr App Rep at p 179):
There is one addition which we think should be made to the rule there laid down by the Lord Chief
Justice. He was dealing with a case where counsel appeared for the prisoner and made an application
for a new trial. In cases where a prisoner is not defended, and an irregularity of this character takes
place, it is, in our opinion, the duty of the judge to inform the prisoner that he has a right to submit that
the trial should not proceed, and that he should make the application then and there if he wishes to do
so. It by no means follows that in every case the prisoner would desire to apply for a fresh trial, but, if
an application is made to that effect, it is the duty of the judge to decide upon the application according
to the circumstances. In this case the appellant was not informed of that right. Whether or not he
knew that he had the right it is not possible for us to decide, but, the opportunity not having been given
to him to apply for the jury to be discharged, we think that a manifest irregularity took place.

In the present case the appellant was informed by the trial judge of his right to have the trial stopped
and was given the opportunity to apply for the jury to be discharged. He nevertheless declined to have the
trial stopped and elected to have the trial proceed. As was observed by the Court of Criminal Appeal in
Featherstones case (R v Featherstone [1942] 2 All ER 672, 168 LT 64, 107 JP 28, 59 TLR 30, 87 Sol Jo
103, 41 LGR 72, 28 Cr App Rep 176, CCA, 2nd Digest Supp) it by no means follows that in every case the
prisoner would desire to apply for a fresh trial. To take but a few examples, the effect of any discrepancies
in the evidence of prosecution witnesses disclosed at the trial might irretrievably be lost on a new trial or a
material witness might die in the interval. In the present case the appellant relied on the integrity of the jury
and made no application for a fresh trial so there did not arise any question of a duty being cast on the judge
to decide upon the application according to the circumstances.
We are of the opinion that the trial judge having informed the appellant of his right to apply for the trial to
be stopped did not err in not stopping the trial after the appellant had elected not to make such application.
This ground of appeal therefore fails.
Reference has been made to the fact that in Featherstones case (R v Featherstone [1942] 2 All ER
672, 168 LT 64, 107 JP 28, 59 TLR 30, 87 Sol Jo 103, 41 LGR 72, 28 Cr App Rep 176, CCA, 2nd Digest
Supp) the conviction was not quashed because the court applied the proviso to s 4 of the Criminal Appeal
Act, 1907 [UK] (the corresponding provision in the Criminal Appeal Ordinance, Cap 8 [BG], being the proviso
to s 6), on the ground that as on committal the appellant had made a statement which amounted to an
admission of guilt no substantial miscarriage of justice had actually occurred. It is, however, to be observed
that consideration is only given to the application of the proviso to s 4 of the Act after it has first been
determined whether the point of law raised in the appeal might be decided in favour of the appellant.
The only other ground of appeal of any substance is that the trial judge erred when he commented
adversely to the appellant during his summing up to the 122 jury on the fact that the appellant did not go into
the witness-box to give evidence on oath.
The direction of the trial judge was as follows:
Has it occurred to you, gentlemen, that the accused has not gone into the witness-box? Let me
explain the law to you. When the case for the prosecution is closed, the judge tells the accused he is
entitled to do one of three things: he need not say anything at all, because the Crown have to prove
the case against him; he could stay where he is in the dock and make a statement in which case no
one could question him; or he could go into the witness-box in which case he could be crossexamined.
Now the judge seldom comments on the fact that an accused person does not go into the witnessbox, because if you give a person a choice of three things and he adopts one, you dont comment on
his doing what he is entitled to do. But the judge is in some cases entitled to make that commentto
comment on the fact that an accused person has not gone into the witness-box. The judge is the only
person entitled to do that. It must be a fair comment. The reason why I have made that comment is
that here you have witness after witness attackedOgle you have been told is an arch conspirator and
a liar, a man who has framed him; Ogle was subjected to over an hours cross-examination; so was
Sharma and so was Babb, and no one has had the opportunity of asking the accused one question !
The appellant contended that the comment by the trial judge on the fact that he did not give evidence on
oath was unfair as he had been informed by the trial judge at the end of the case for the prosecution that he
had the right to give his evidence from the dock or even to remain silent.
Section 52 of the Evidence Ordinance, Cap 25 [BG], provides that a person charged with an offence
shall be a competent witness for the defence at every stage of the proceedings and that his failure to give
evidence shall not be made the subject of any comment by the prosecution. This provision is in similar
terms to that of s 1 (b) of the Criminal Evidence Act, 1898 [UK]. In Kops v R. Ex p Kops ([1894] AC 650, 64
LJPC 34, 70 LT 890, 58 JP 668, 10 TLR 525, 6 R 522, PC, 14 Digest (Repl) 341, 3313), a case from New
South Wales, Australia, the prisoner was charged with attempting to set fire to a building. The Act, 55 Vict,
No 5, of New South Wales, provided that a prisoner charged with an indictable offence shall be competent,
but not compellable, to give evidence on the charge. The prisoner was defended by counsel but was not
called to give evidence. The trial judge in summing-up commented upon the fact that he was not called to
give evidence. The prisoner was convicted and on a case stated for the opinion of the Supreme Court of
New South Wales as to whether the comment was right, five of the judges were of the opinion that the
conviction should be affirmed and two that it should not. The prisoner applied for special leave to appeal to
the Judicial Committee of the Privy Council. Counsel for the applicant argued that the prisoner had a
constitutional right to call on the other side to prove their case beyond reasonable doubt and that it was not
intended by that statute to put the prisoner on the same level as other witnesses. Counsel urged that the
question was whether the judge had any right to call the attention of the jury to the fact that the prisoner had
not been called to give evidence. In the judgment of the Judicial Committee in dismissing the petition the
Lord Chancellor (Lord Herschell) said (10 TLR at p 526):

The point which it was sought to raise by the appeal, for which special leave was asked, is whether
upon the trial of a prisoner since the passing of the Criminal Law and Evidence Amendment Act, 55
Vict, No 5 [NSW], it was legitimate for the judge, in commenting upon the facts proved, to refer to the
capacity of the prisoner to give evidence on his own behalf and so explain matters which would
naturally be within his own knowledge and 123 of which an explanation would be important in view of
the evidence already given. The argument would have to go to this length, and their Lordships
understood it was put as high as thisthat either in no case was a judge entitled to comment upon the
prisoner having refrained from giving evidence or that in this particular case there were circumstances
rendering such a comment illegitimate in point of law. The majority of the learned judges in the court
below had held that the comments made by the learned judge in this case were made according to
law, and that there was no reason to interfere with the verdict. Their Lordships saw no reason to doubt
the correctness of the conclusion at which the majority of the learned judges arrived. They did not lay
downit was not within the scope of the case necessary to lay downany general rule as to such
comments. There might no doubt be cases in which it would not be expedient or calculated to further
the ends of justice, which undoubtedly regards the interests of the prisoner as much as the interests of
the Crown who were prosecuting, to call attention to the fact that the prisoner had not tendered himself
as a witness, it being open to him either to tender himself or not, as he pleased. But, on the other
hand there were cases in which it appears to their Lordships that such comments might be both
legitimate and necessary.
In R v Rhodes ([1899] 1 QB 77, 68 LJQB 83, 79 LT 360, 62 JP 774, 47 WR 121, 15 TLR 37, 43 Sol Jo
45, 19 Cox, CC 182, CCR, 14 Digest (Repl) 341, 3314) on a charge of false pretences the prisoner was not
represented by counsel and did not give evidence. Under the Criminal Evidence Act, 1898 [UK], which had
then recently been enacted a prisoner was a competent witness for the defence and his failure to give
evidence could not be made the subject of any comment by the prosecution. The Chairman in his summing
up to the jury commented on the prisoners failure to give evidence to explain some point which had arisen
at the trial. The prisoner was convicted. On a case stated to the Divisional Court (of five judges) the Lord
Chief Justice said ([1899] 1 QB at p 83) that as to the right of the Chairman to comment, under the
circumstances of the case, on the failure of the prisoner to give evidence, he thought that most clearly the
Chairman had the right and there was nothing in the Act to prevent his exercising his discretion in the matter.
In R v Voisin ([1918] 1 KB 531, 87 LJKB 574, 118 LT 654, 34 TLR 263, 62 Sol Jo 423, 26 Cox, CC 224,
13 Cr App Rep 89, CCA, 14 Digest (Repl) 341, 3318) the judge commented on the fact that the prisoner had
not gone into the witness-box and had not called a certain witness. A T Lawrence J, in delivering the
judgment of the Court of Criminal Appeal said (34 TLR at p 264):
The judges comments on the appellants not going into the witness-box and his not calling the
woman Roche after her discharge were within his judicial discretion and are not matters for this court
to review.
In Waughs case (Waugh v R [1950] AC 203, 66 (pt 1) TLR 554, PC, 15 Digest (Repl) 973, *5961)
certain observations were made by the Judicial Committee of the Privy Council on the care to be taken by a
judge in commenting on the fact that a prisoner has not given evidence. Lord Oaksey in delivering the
judgment of the Board after referring to the fact that in nine places in the summing up of the trial judge
reference was made to the failure of the appellant to give evidence, said:
It is true that it is a matter for the judges discretion whether he shall comment on the fact that a
prisoner has not given evidence; but the very fact that the prosecution are not permitted to comment
on that fact shows how careful a judge should be in making such comment. Here the appellant had
told the same story almost immediately after the shooting, and his statements to the prosecution
witnesses and his statement to the police made the same day were put in evidence by the prosecution.
Moreover, his story was corroborated by the finding of the bag of coconuts and the iron tool and by the
independent evidence as to the place where the shooting took place. In 124 such a state of the
evidence the judges repeated comments on the appellants failure to give evidence may well have led
the jury to think that no innocent man could have taken such a course. The question whether a
prisoner is to be called as a witness in such circumstances and on a murder charge is always one of
the greatest anxiety for the prisoners legal advisers, but in the present case their Lordships think that
the prisoners counsel was fully justified in not calling the prisoner, and that the judge, if he made any
comment on the matter at all, ought at least to have pointed out to the jury that the prisoner was not
bound to give evidence and that it was for the prosecution to make out the case beyond reasonable
doubt.

Apart, however, from this question, their Lordships are of opinion that the dying declaration was
inadmissible...
It is to be observed that the Privy Council allowed the appeal on the grounds that part only of a dying
declaration had been admitted and was therefore inadmissible and that the trial judge failed to point out to
the jury that it had not been subject to cross-examination.
In the present case the trial judge did point out to the jury that the appellant was not bound to give
evidence and that it was for the prosecution to make out the case beyond reasonable doubt. He also told
the jury his reason for making the comment that the appellant had not given evidence on oath, that is that
Ogle and other witnesses had been accused by the appellant of a conspiracy to frame him and that this
accusation had only been made from the shelter of the dock. We do not see that the trial judge in making
that comment was in any way unfair to the appellant, or that we should interfere with the exercise of the trial
judges discretion.
This ground of appeal also fails.
One other matter should be mentioned. The appellant also contended that the trial judge erred when in
his summing up he referred to the fact that the appellant had not called in support of his alibi the person
whom he said was residing in the house in which he said he slept on the night of 3 April 1958. We are of the
opinion that it was in the discretion of the trial judge to make that comment and therefore not the subject of
review and authority in support of that is to be found in the judgment of the Court of Criminal Appeal in R v
Voisin ([1918] 1 KB 531, 87 LJKB 574, 118 LT 654, 34 TLR 263, 62 Sol Jo 423, 26 Cox, CC 224, 13 Cr App
Rep 89, CCA, 14 Digest (Repl) 341, 3318).
The appeal fails on all grounds and is dismissed.
The conviction is affirmed.
PHILLIPS J (dissenting* ). The appellant, Charles James, on 15 October 1958, was convicted of the
offence of breaking and entering the house of one Mangri on 3 April 1958, with intent to steal therein
(contrary to s 233 of the Criminal Law (Offences) Ordinance, Cap 10 [BG]).
The appellant was unrepresented at the trial. Three constables gave evidence for the prosecution to
the effect that on the night of 3 April 1958, they had cause to watch the movements of the appellant from
7.15 pm to 1.20 am that while in ambush they saw the appellant enter Mangris premises, push the door
and window nearby, then go downstairs, take up his cycle and lean it up some distance away, lock it and
then return to Mangris home. They said that the appellant then re-entered Mangris home, something was
heard to fall in the house, that the appellant jumped through the western window and ran north out of the
premises. He was pursued, held, but escaped into some canefields.

125
Nothing was missing from the house. The constables took possession of the cycle and it was tendered
in evidence at the trial.
On 8 April 1958, a warrant to apprehend the appellant was obtained. He was subsequently arrested on
15 May 1958. Mangri was not aware at the time that anyone had entered her house. She was so informed
by the police later that morning.
A witness for the prosecution, one Shirley Jamesthe sister-in-law of the accused, identified the cycle
as that of the appellant. She said it had formerly belonged to her late husband, Sgt James, that she had
sold it to the appellant in November 1957, and had seen him with it in the early part of this year (1958).
The appellants defence was an alibi and that the police constables had framed him. His statement
from the dock was as follows:
On Thursday, 3 April 1958, I was in Robb Street, Georgetown, from 9 until 10.30, not until 10 pm.
I left there and I went home where I am living. I was stopping at a friend in Sheriff Street,
Campbellville. I rode with my bicycle. I locked it leaving the key inside as I always do. This was about
11 oclock.
Next morning I got up and after searching for my bicycle I did not find it. I went across to where my
mother was living. I made enquiries and I did not find it. I came down to Georgetown and I looked
about. I did not find it. I asked one or two persons about my bicycle.
From this fruitless search I returned to Kitty and went to the police station. This was about 10.45
am. I met Constable Willis in the Kitty guardroom. He asked me what I wanted and I told him my
cycle was lost, it was stolen. Sub-inspector Ramsamooj, then in charge of the station, said he would
take the report. He took the report. Before taking it he insisted that I go and search about saying that
many people report the loss of a cycle and then find it and give a lot of worries. He further advised me
to go and look by the train line. I told him, Look sergeant, I am tired. He told me to return if I found it.
The next day, 5 April 1958, I returned to the police station and made enquiries. He told me it was
not found.

On 15 May 1958, I was arrested by Constable Ogle. I was taken to Brickdam police station. No
one told me anything. I was placed in the lock-ups. On 17 May I appeared before Mr Arthur Chung,
Magistrate. I was never told anything about Exhibit C being found near the Ruimveldt public road. I
was not shown any yachting shoe. Other than the time when I was arrested by constable Ogle I was
never questioned nor identified.
I never broke into Mangris home. I do not know where she is living. I have suffered prior to this
persecution at the hands of Constable Ogle. He has framed me and he has always been vowing to
keep me in prison. That is all.
At the trial quite unexpectedly the prisoners character was made known to the jury as a known thief.
The appellant in cross-examining Detective Constable Ogle was attempting to show that if the
constables had seen him and identified him an all-stations message would have been sent out. This
constable swore that this had in fact been done. The prosecution to establish this fact called one Edward
Lee, a former constable. The appellant objected to the witness being called. The witness said (as appears
from the record)I sent an all-stations message on 4 April Let Charles James a known thief...
At that stage the trial judge proposed to stop the trial and asked the appellant if he desired the trial to be
stopped or to proceed. The appellant consented to the trial proceeding.
In his summing up the trial judge quite properly advised the jury that they 126 ought only to convict on
the relevant evidence in the case and not by reason of the fact that he is alleged to be a known thief.
The trial judge directed the jury thus:
You heard me advise the accused after I had taken the trouble to consult the law on the subject. I
advised the accused that the trial could be stopped because the law is that where an accused person
is represented by counsel and accuseds past is disclosed, then counsel might elect to continue the
case. He might say, Irrespective of that I want to go on with the case. But where an accused person
has no one to advise him, the judge must give him as much help as possible. In the exercise of my
duty I advised the accused to have the case stopped. You heard him ignore my advice and ask to
have the case continued. That is his right, if he wants the case to go on. That incident must not be
used in his favour. You must not say, Poor fellow ! The witness has brought out this and tried to do
him harm. I am going to acquit him because of that. Or, you must not say, The man has a past. He
must be guilty, that is why the police followed him. You are not to adopt that attitude. Ignore that
incident, and if you do that, that is the proper way in which you should approach the consideration of
the case.
The appellant argued that notwithstanding his consent the trial judge, knowing the prejudicial effect of
such a disclosure, in the exercise of his discretion ought to have stopped the trial. R v Featherstone ([1942]
2 All ER 672, 168 LT 64, 107 JP 28, 59 TLR 30, 87 Sol Jo 103, 41 LGR 72, 28 Cr App Rep 176, CCA, 2nd
Digest Supp); R v Fripp and Jones ((1942), 29 Cr App Rep 6, CCA, 2nd Digest Supp). The appellant who
was also unrepresented at the hearing of the appeal further argued that the trial judge at the conclusion of
his summing up to the jury made an unfair comment to the jury on the appellants failure to give evidence on
oath.
The direction given by the trial judge is as follows:
Has it occurred to you, gentlemen, that the accused has not gone into the witness-box? Let me
explain the law to you. When the case for the prosecution is closed, the judge tells the accused he is
entitled to do one of three things: he need not say anything at all, because the Crown have to prove
the case against him; he could stay where he is in the dock and make a statement in which case no
one could question him; or he could go into the witness-box in which case he could be crossexamined.
Now, the judge seldom comments on the fact that an accused person does not go into the witnessbox, because if you give a person a choice of three things and he adopts one, you dont comment on
his doing what he is entitled to do. But the judge is in some cases entitled to make that commentto
comment on the fact that an accused person has not gone into the witness-box. The judge is the only
person entitled to do that. It must be a fair comment. The reason why I have made that comment is
that here you have witness after witness attackedOgle you have been told is an arch conspirator, a
liar, a man who has framed him; Ogle was subjected to over an hours cross-examination, so was
Sharma and so was Babb, and no one has had the opportunity of asking the accused one question.
It is in the discretion of the judge whether in the circumstances of the case he ought to make a comment
on the failure of the prisoner to go into the witness-box and give evidence on oath. With the exercise of this
discretion the Court of Appeal will not interfere if the comment is fair and just: R v Rhodes ([1899] 1 QB 77,

68 LJQB 83, 79 LT 360, 62 JP 774, 47 WR 121, 15 TLR 37, 43 Sol Jo 45, 19 Cox, CC 182, CCR, 14 Digest
(Repl) 341, 3314); Kops v R, Ex p Kops ([1894] AC 650, 64 LJPC 34, 70 LT 890, 58 JP 668, 10 TLR 525, 6
R 522, PC, 14 Digest (Repl) 341, 3313); Waugh v R ([1950] AC 203, 66 (pt 1) TLR 554, PC, 15 Digest (Repl)
973, 5961). In R v Rhodes ([1899] 1 QB 77, 68 LJQB 83, 79 LT 360, 62 JP 774, 47 WR 121, 15 TLR 37, 43
Sol Jo 45, 19 Cox, CC 182, CCR, 14 Digest (Repl) 341, 3314) Lord Russell Of Killowen observed ([1899] 1
QB at p 83):
The nature and degree of such comment must rest entirely in the discretion of the judge who tries
the case; and it is impossible to lay down any rule as to the cases in which he ought or ought not to
comment on the failure 127 of the prisoner to give evidence, or as to what those comments should be.
There are some cases in which it would be unwise to make any such comment at all; there are others
in which it would be absolutely necessary in the interests of justice that such comments should be
made. That is a question entirely for the discretion of the judge.
In Kops v R Ex p Kops ([1894] AC 650, 64 LJPC 34, 70 LT 890, 58 JP 668, 10 TLR 525, 6 R 522, PC, 14
Digest (Repl) 341, 3313), the Lord Chancellor said ([1894] AC at p 653):
There may no doubt be cases in which it would not be expedient, or calculated to further the ends
of justice, which undoubtedly regards the interests of the prisoner as much as the interests of the
Crown, to call attention to the fact that the prisoner has not tendered himself as a witness, it being
open to him either to tender himself, or not, as he pleases. But on the other hand there are cases in
which it appears to their Lordships that such comments may be both legitimate and necessary.
It would not be fair and just in my view if the comment made might leave the jury with the impression
that if the prisoner is as innocent as he professes he would have gone into the witness-box and submitted
himself to cross-examination. To decline to go into the witness-box does not necessarily imply guilt.
The prisoner must be convicted on the strength of the evidence adduced by the Crown.
By the nature of the defence, if true, it would be necessary to subject the witnesses for the Crown to
very close questioning; it is the right of the prisoner by so doing to create, if he can, a reasonable doubt in
the minds of the jury.
Even though the judge intended it to be a fair comment I am not at all satisfied that it was a fair and just
comment in the circumstances of this case.
The appellant in his statement from the dock averred that at the time of the alleged burglary he was at
home at Sheriff Street, Campbellville, where he was residing with a friend.
The trial judge commented on the fact that the appellant had not called this friend as a witness for the
defence.
The trial judge said:
Has it occurred to you, gentlemen, that the accused, who said he was living in Sheriff Street with a
friend, has not called the name of the friend, or attempted to get him here? He gave a list of ten or
twelve names as witnesses. He called a magistrate, a sergeant of Brickdam police station, a corporal,
Superintendent of Prisons, police prosecutor and about five or six others whom he did not eventually
call, but the friend in whose house he slept at Sheriff Street on the night of 3 April has not entered the
witness-box.
(Here the accused got up to say the judge stopped him when he was calling the names of
witnesses on his list.)
I am commenting on the fact that the friend hasnt been brought.
It would appear from the record that the appellant attempted to interrupt the judge in his summing up to
allege that the judge had somehow stopped him from calling all the witnesses on his list of witnesses.
How that was possible I do not know. However the appellant repeated his allegation in arguing his
appeal before this court. He alleged that the trial judge had in the circumstances made an adverse and
unfair comment to the jury in this regard.
It may well be that this person, if such there be, was not called by the defence because he would not
have supported the defence. The fact remains the witness was not called by him.
In R v Firth ([1938] 3 All ER 783, 26 Cr App Rep 148, CCA, Digest Supp) with regard to the inadvertent
disclosure of the prisoners character Hewart LCJ, said (26 Cr App Rep at p 153):

128
It is not very profitable or satisfactory to enter on the sphere of inquiries with regard to the precise
effect which may be produced on the mind of a jurorand still less on the minds of a collection of
jurorsby a piece of evidence, but the principle laid down by this court is that, where an irregularity

manifestly takes place, then there ought to be an end of the trial in that form. It seems to us in a high
degree dangerous to permit the trial to continue to its end where such an irregularity has occurred as
that which here was inadvertently permitted.
In R v Fripp, R v Jones ((1942), 29 Cr App Rep 6, CCA, 2nd Digest Supp) Caldecote LCJ, said (29 Cr
App Rep at p 9):
The court is properly slow to apply the proviso, but when the circumstances are such as to make it
certain, in the opinion of the court, that the verdict of the jury would have been the same if there had
been no irregularity, it is the duty of the court to do that which the Legislature intended, namely, not to
allow what would amount to a miscarriage of justice merely because there was an irregularity.
See Stirland v DPP ([1944] 2 All ER 13, [1944] AC 315, 113 LJKB 394, 171 LT 78, 109 JP 1, 60 TLR
461, 88 Sol Jo 255, 42 LGR 263, sub nom R v Stirland, 30 Cr App Rep 40, HL, 2nd Digest Supp) ([1944] AC
at p 316):
There is no universal rule that a conviction cannot be quashed on the ground of improper
admission of evidence prejudicial to the prisoner unless his counsel applied for the trial to be begun
again before another jury.
I am not convinced that if the character of the appellant had not been disclosed and the comment not
been made of the appellants failure to go into the witness-box to be cross-examined that the jury inevitably
would have come to the same conclusion.
I am not satisfied that the verdict is based purely on the evidence established by the Crown and not also
on extraneous, irrelevant and prejudicial circumstances.
I would quash the conviction and order a new trial.
Appeal dismissed and conviction uphold.
Solicitor: Crown Solicitor (for the Crown)

(1959) 1 WIR 129

R v Ingleton And Warren

SUPREME COURT OF JAMAICACOURT OF APPEAL
MACGREGOR CJ COOLS-LARTIGUE AND SMALL JJ
8, 9 DECEMBER 1958, 7 JANUARY 1959

Criminal Law Conspiracy Drivers Licence Certificate of competence False statement in certificate of
competence Road Traffic Law, Cap 346 [J], s 14 (1).
Criminal Law Procuring a drivers licence to be issued with intent to defraud by false pretences No intent
to defraud Larceny Law, Cap 212 [J], s 33 (1).
Both appellants were convicted of conspiring to contravene the provisions of s 14 (1) of the Road Traffic
Law, Cap 346 [J], by procuring the grant of drivers licences to certain applicants by the production of
certificates of competence purporting to be issued in accordance with the provisions of Reg 43 of the Road
Traffic Regulations [J]. The appellant I. was also convicted on 129 counts charging that with intent to
defraud he procured a drivers licence to be delivered to a person named in the count by falsely pretending
that a certificate of competence was issued in accordance with the Road Traffic law to the person named,
that he had personally examined the person named as to his competence, and that that person had
complied with all the requirements of s 14 (1) of the Road Traffic Law.
The appellant W taught persons to drive motor vehicles. He then gave each an application form for a
drivers licence. Each applicant filled up the form and handed it to W. Subsequently the form was returned
to the applicant with his address altered from one in the Corporate Area to one in Trelawny. Attached to the
form was a certificate of competence signed by the appellant I. who was the certifying officer stationed in
Trelawny. Upon tender of the document and 1 to the Collector of Taxes, a drivers licence was issued by
the Collector of Taxes to the applicant. In no case did the applicant take any test to show his competence to
drive.

Held: (i) the appellant I, knowing that a drivers licence is issued upon production of the certificate of
competence signed by him, committed an offence under s 14 (2) of the Road Traffic Law, Cap 346 [J], when
he made a false statement in the certificate of competence that a person had complied with the
requirements of s 14 (1) when in fact he had not;
(ii) the offence of conspiracy was sufficiently described in the indictment;
(iii) the facts disclosed that the appellants agreed to commit an unlawful act which was fraudulent and
therefore the offence of conspiracy was committed, R v Whitaker (R v Whitaker [1914] 3 KB 1283, 84 LJKB
225, 112 LT 41, 79 JP 28, 30 TLR 627, 58 Sol Jo 707, 24 Cox, CC 472, 10 Cr App Rep 245, CCA, 14 Digest
(Repl) 129, 913) followed;
(iv) the reference in the count for conspiracy to certain applicants did not refer to several conspiracies but
to one conspiracy, and the count was not bad for duplicity;
(v) the appellant I. was wrongly convicted on the other counts as no pretence was ever made to the
Licensing Authority by whom drivers licences were issued;
(vi) although there was power to do so, the court would not substitute convictions for an attempt as the facts
did not disclose an offence under the Larceny Law in that there was no intent to defraud, but only an offence
under s 14 (2) of the Road Traffic Law, Cap 346 [J].
Appeal allowed in part and dismissed in part.
Cases referred to
R v Whitaker [1914] 3 KB 1283, 84 LJKB 225, 112 LT 41, 79 JP 28, 30 TLR 627, 58 Sol Jo 707, 24 Cox, CC
472, 10 Cr App Rep 245, CCA, 14 Digest (Repl) 129, 913
R v Aspinall (1876), 2 QBD 48, 46 LJMC 145, 36 LT 297, 42 JP 52, 13 Cox, CC 563, sub nom Aspinall v R,
25 WR 283, CA, 14 Digest 121, 853
Board of Trade v Owen [1957] 1 All ER 411, 121 JP 177, 101 Sol Jo 186, 41 Cr App Rep 11, HL, affg sc sub
nom R v Owen [1956] 3 All ER 432, CCA, 3rd Digest Supp
Appeal
Appeal from convictions by the Resident Magistrate, Kingston.
Moody QC (instructed by Livingston for the appellant Ingleton
Thompson for the appellant Warren
Parnell for the Crown
Cur adv vult.
MACGREGOR CJ delivered the judgment of the court: The appellants were convicted in the Resident
magistrates Court, Kingston, on an indictment containing eighteen counts. The first count, upon which both
were convicted, charged them with conspiracy. The other seventeen counts charged Ingleton alone with
offences contrary to s 33 (1) of the Larceny Law, Cap 212 [J], 130and of them he was convicted on eight.
The particulars of the first count were that they conspired together and with other persons unknown to
contravene the provisions of s 14 (1) of the Road Traffic Law, Cap 346 [J], by procuring the grant of drivers
licences to certain applicants by the production of certificates of competence purporting to be issued in
accordance with the provisions of Regulation 43 of the Road Traffic Regulations [J]. Each of the other
counts charged Ingleton with similar offences, differing from each other only in respect of the date and the
person. He was charged that with intent to defraud he procured a drivers licence to be delivered to the
person named for his use by falsely pretending that a certificate of competence was issued in accordance
with the Road Traffic Law to the person named, that he had personally examined the person named as to
his competence and that that person had complied with all the requirements of s 14 (1) of the Road Traffic
Law.
The appellant Warren kept a driving school at 6 Rainford Road in Kingston, and, as an instructor, taught
pupils to drive and assisted them to get their drivers licences. The appellant Ingleton was a certifying officer
under the Road Traffic Law, having been appointed in 1953 when he was stationed in Kingston. He then
became acquainted with the appellant Warren. From 1 September 1956, to 1 October 1957, Ingleton was
stationed in Trelawny. From time to time persons, who resided in the Corporate Area, paid fees to the

appellant Warren to be taught to drive and to be helped to obtain their drivers licences. Having given them
some lessons, Warren gave each an application form for a drivers licence. Each person filled up the
application form, attached his photograph and, where necessary, obtained the certificates of character and
of health, and then handed the form to Warren. Subsequently the form was returned and attached to it was
a certificate of competence signed by the appellant Ingleton for the Traffic Area Authority, but the address of
each applicant had been altered from one in the Corporate Area to one in Trelawny. Upon tender of the
documents and ?1, the licence fee, the Collector of Taxes thereupon issued a drivers licence to the
applicant. In no case did the applicant take any test to show his competence to drive a motor vehicle.
[The court proceeded to deal with matters which call for no report, and continued:]
We consider now the first count of conspiracy, the material words of which are:
(a) to contravene the provisions of s 14 (1) of the Road Traffic Law, Cap 346,
(b) by procuring the grant of drivers licences to certain applicants,
(c) by the production of certificates of competence purporting to be issued in accordance with the
provisions of Regulation 43.
Counsel for the appellants submitted that there was no offence disclosed in this count, that s 14 (1) is a
procedural section creating no offence, and that if one person cannot offend against that section, then two
persons cannot conspire to contravene it. Section 14 (2) makes it an offence if any person, for the purpose
of obtaining the grant of a licence to any other person, makes any false statement. It appears to us that if
the certifying officer, knowing that a licence is issued to an applicant upon production of the certificate of
competence signed by him and upon payment of the fee of 1 required by s 14 (1), makes a false statement
in the certificate of competence that a person has complied with the requirements of s 14 (1), when in fact
he has not, in that he has failed to take the test required by s 14 (1) (ii), then he has committed an offence
under s 14 (2). In other words, he has committed an offence under s 14 (2) in that he has made a false
declaration as to a fact required by s 14 (1). We are of opinion that in the instant case the offence is
sufficiently stated, but if there is any doubt about it, then these facts are covered by the judgment of the
Court 131 of Criminal Appeal in R v Whitaker ([1914] 3 KB 1283, 84 LJKB 225, 112 LT 41, 79 JP 28, 30 TLR
627, 58 Sol Jo 707, 24 Cox, CC 472, 10 Cr App Rep 245, CCA, 14 Digest (Repl) 129, 913). Lawrence J, as
he then was, said (30 TLR at p 629):
It was argued for the Crown that ... the count for conspiracy would still hold good, as to establish a
charge of conspiracy it was not necessary to prove that the act to be done by the conspirators was
criminal, and it was sufficient to show that the act was unlawful and that the agreement was to commit
a tort. They (ie the court) thought that the argument was right, at all events, where the act to be done
was in some way fraudulent or corrupt.
We refer also to R v Aspinall ((1876), 2 QBD 48, 46 LJMC 145, 36 LT 297, 42 JP 52, 13 Cox, CC 563,
sub nom Aspinall v R, 25 WR 283, CA, 14 Digest 121, 853). We are of opinion that the decision of the Court
of Criminal Appeal in Whitaker (R v Whitaker ([1914] 3 KB 1283, 84 LJKB 225, 112 LT 41, 79 JP 28, 30 TLR
627, 58 Sol Jo 707, 24 Cox, CC 472, 10 Cr App Rep 245, CCA, 14 Digest (Repl) 129, 913) has not been
affected by the decision of the House of Lords in Board of Trade v Owen ([1957] 1 All ER 411, 121 JP 177,
101 Sol Jo 186, 41 Cr App Rep 11, HL, affg sc sub nom R v Owen [1956] 3 All ER 432, CCA, 3rd Digest
Supp), to which we were referred by learned counsel for the appellants.
It was further submitted that the count was bad for vagueness and duplicity because it referred to
certain applicants, that each conspiracy in relation to each applicant was a separate conspiracy and should
have been separately indicted. We do not agree. We see no reason why two or more persons cannot
conspire to do acts in relation to more than one person. In fact, the precedent in Archbold, 33rd Edn, at p
1482, illustrates this view of conspiracy,
conspired together ... to defraud such persons as should thereafter be induced to part with money .
. .
In our judgment the appellants were properly convicted on count 1 of the indictment.
We turn now to the other counts on which the appellant Ingleton was convicted. The ingredients to be
proved before conviction are:
with intent to defraud
procured a chattel to be delivered
by falsely pretending that a certificate of competence . . . was issued in accordance with the
Road Traffic Law.

Particulars were then given of the false pretences, that the appellant had personally examined the
applicant as to his competence and he had complied with all the requirements of s 14 (1) of the Road Traffic
Law [J].
It was first submitted that as s 14 (1) (ii) permits an applicant to be exempted from a test of his
mechanical knowledge, the certificate of competence does not necessarily mean that the applicant has been
examined as to his ability to drive. Counsel for the appellants referred us to Regulation 44, which permits
exemption from a test of a person who, when the law first came into operation, had been the holder of a
drivers licence for six months immediately preceding the application. As this law has been in force for
twenty years no applicant could now be exempted under this regulation. We were not referred to any other
section or regulation exempting applicants from examination as to their competence to drive.
It is clear that the conviction on these counts cannot stand as the false pretences were in no case made
to the Licensing Authority, which alone is empowered to issue the licence. But the Crown asks that
convictions for attempting to commit the offences be substituted. That the court has the power so to
substitute a conviction is clear. But we are not prepared to do so. It appears to us that charges have been
preferred under the wrong Law. The Larceny Law, Cap 212 [J], deals with larceny and kindred offences,
such as embezzlement, conversion, falsification of accounts, false pretences. In every one of these cases
some person is deprived of goods which are rightfully his. In the instant case no one has been deprived of
anything. The Licensing Authority issuing the drivers licence suffers no loss. Because the applicant
purports to have complied with certain conditions, a licence is issued to him.

132
The appellant has committed offences under s 14 (2) and should have been charged under that subsection.
Nor is any intent to defraud disclosed by the evidence. There appears to be an intent to deceive but that is
not sufficient to support the indictment. The convictions of the appellant Ingleton on the eight counts other
than the first are set aside.
Both appellants will serve the sentences passed on the first count.
Appeal allowed in part and dismissed in part.

(1959) 1 WIR 133

Kingston Wharves Ltd v Reynolds Jamaica Mines Ltd

PRIVY COUNCIL
LORD MORTON OF HENRYTON LORD COHEN AND THE RT HON L M D DE SILVA
15 DECEMBER 1958

Wharfage Rate of, on tractors and trailers Carriages Heavy packages Statute Construction
Meaning of word Contemporary usage
Wharfage Law, Cap 412 [J].
The Wharfage Law, Cap 412 [J], provides by s 12 for the payment of wharfage according to rates fixed in the
schedules, and Schedule A, as amended, provides:
Carriages, four wheels, including wheels, each ............22s..6d. Carts and carriages of two wheels, including
wheels, each ....9s.
By s 16 (9):
Any goods not particularly enumerated . . . in the Schedules . . . shall be liable to be charged for in
proportion to the rates therein fixed: Provided, however, that in respect of machinery and other heavy
packages exceeding two tons in weight the rates shall be fixed by special agreement.
Five tractorspropelled by internal combustion engineseach mounted on four wheels and each weighing
18,000 lbs, and five trailers for use therewith and each mounted on two wheels and each weighing 17,000
lbs, were imported into Jamaica by the respondent company and landed on the appellants wharves. The
respondents contended that the tractors and trailers were carriages of four and two wheels respectively, to
which the rates in Schedule A applied, and that a total wharfage of 7 17s 6d was therefore payable.

Held: the tractors and trailers were not carriages to which the charges in Schedule A applied, but were
goods not particularly enumerated . . . in the Schedules within the meaning of s 16 (9) and, whether
machinery or not, they fell within the term heavy packages
Observations of the Earl of Halsbury on carriage in Simpson v Teignmouth & Shaldon Bridge Co (1), [1903]
1 KB at pp 412 and 413, considered.
Appeal allowed. Case remitted to Resident Magistrate for assessment of charges.
Case referred to
Simpson v Teignmouth & Shaldon Bridge Co [1903] 1 KB 405, 72 LJKB 204, 88 LT 117, 67 JP 65, 51 WR
545, 19 TLR 225, 47 Sol Jo 278, 1 LGR 235, CA, 26 Digest 348, 756

133
Appeal
Appeal from the judgment of the Court of Appeal of Jamaica (13 January 1956) reversing a judgment of the
Resident Magistrate for Kingston.
T G Roche QC and Peter Bristow (instructed by Clifford-Turner & Co agents for Judah & Randall) for the
appellants
Stanley Rees QC and Arthur Bagnall (instructed by A F and R W Tweedie agents for Livingston Alexander &
Levy) for the respondents
THE RT HON L M D DE SILVA delivered the judgment of the court: The appellants, who are the defendants
in the action, are wharfingers. The respondents, who are the plaintiffs, are a bauxite mining company. The
respondents imported five Euclid tractors and trailers which were landed on 28 November 1951, on the
appellants wharves at Kingston in Jamaica. The appellants demanded a sum of 139 6s 5d as wharfage
payable to them. The respondents contended that only 7 17s 6d was payable. The respondents, anxious
to prevent delay in delivery, paid the sum demanded under protest and sued in this action for the difference
between the two sums. They limited their claim to 100 so as to bring it within the jurisdiction of the
Resident Magistrates Court.
The Resident Magistrate held that the amount demanded by and paid to the appellants was due as
wharfage and dismissed the action. On appeal the Court of Appeal set aside this order and entered
judgment for the respondents as prayed for. This appeal is from the judgment and order of the Court of
Appeal.
An Euclid tractor is propelled by an internal combustion engine and is mounted on four rubber-tyred
wheels. It weighs 18,000 lbs. A trailer weighs 17,000 lbs and it is mounted on two rubber-tyred wheels. In
use it is coupled with a tractor and constructed with a contrivance which enables a load which it is carrying
to be dumped down easily. These articles were imported for transporting bauxite-bearing earth to the
respondents processing plant within the respondents premises, but not for use on a public road.
The Wharfage Law of 1895 (Cap 281 of the Revised Laws Of Jamaica, 1938, Vol IV, p 3044) makes
provision for the landing of goods and the payment of wharfage. Section 2 defines wharfage as the
payment authorised by this Law to be demanded and received by any wharfinger for and in respect
of the use of his wharf by any person and for services rendered thereat in respect of any goods of such
person.
Section 11 provides that every wharfinger shall be obliged, to the extent of available accommodation, to
receive goods, other than explosives, brought to his wharf.
Section 12 enacts amongst other things for the payment of wharfage
according to the rates fixed in one of the Schedules A, B, C or D to this Law as applicable to the
same.
In Schedule A appear the following items:
Carriages, four wheels, including wheels, each .............15s. Carts and carriages of two wheels,
including wheels, each ........6s.
By Law 30 of 1951 the charges for these two items at the wharves in question were raised to 22s 6d
and 9s. The respondents contend that these items were applicable to the goods, that the tractor was a

carriage attracting wharfage at 22s 6d, as it was on four wheels, and the trailer was was also a carriage
attracting wharfage at 9s, as it was on two wheels. The appellants denied the correctness of this contention.
The Resident magistrate rejected the contention. The Court of Appeal accepted it.
The appellants arrived at the figure of 139 6s 5d. on the basis of a scheme of charges drawn up in
1944 by an association known as the Shipping Association. No evidence was given as to the constitution
and membership of this association other than that it comprises most of the shipping agents and wharfingers
in 134 Jamaica and that some of the directors of the appellant company are members. Under the scheme
everything weighing one ton and upwards was classed under an item termed heavy lift. The Association is
not a body to which the legislature has delegated the power to fix wharfage charges.
The scale of charges fixed by the Shipping Association for heavy lift was:
1 ton up to under 2 tons - 9d per 100 lb plus 50 per cent.
2 tons and under 3 tons - 9d per 100 lb plus 75 per cent.
3 tons and upwards - 9d per 100 lb plus 100 per cent.
The appellants in the argument before their Lordships sought to sustain the validity of the charges
demanded and received by them on the ground that the goods were not covered by any of the items in the
Schedules to the Law of 1895 and consequently came within the provisions of s 16 (9), which says:
Any goods not particularly enumerated and set forth in the Schedules A, B, C and D annexed to
this Law shall be liable to be charged for in proportion to the rates therein fixed: Provided, however,
that in respect of machinery and other heavy packages exceeding two tons in weight the rates shall be
fixed by special agreement.
They argued further that the goods were machinery or heavy packages exceeding two tons in
weight and that there had been a special agreement with regard to them.
It was said that the Shipping Association scale of charges was open and notorious to all persons
importing goods, that they constituted an offer to importers of goods and that if goods were landed on a
wharf without a contract relating expressly to the goods the offer of the wharfingers must be deemed to have
been accepted by the importer, and that in this way a special agreement within the meaning of the
subsection would be constituted.
At the end of the argument the parties desired, as a matter of agreement, that if their Lordships came to
the conclusion that the articles were goods not particularly enumerated and set forth in the Schedules and
that they were machinery or heavy packages within the meaning of s 16 (9) but that there had been no
special agreement within the meaning of the subsection, the appellants should be declared entitled to a fair
and reasonable charge for the use of the appellants wharf and for the services rendered by the appellants in
respect of the tractors and trailers landed.
For reasons which follow, their Lordships have formed the view that the tractors and trailers in question
do not fall for payment of wharfage charges under the item relating to carriages in Schedule A, and that
they are goods not particularly enumerated and set forth in the Schedules A, B, C and D within the
meaning of s 16 (9). They agree with the Court of Appeal that there has been no special agreement within
the meaning of the subsection.
A carriage in its widest sense can be said to be something used for carrying persons, goods or
something else. Their Lordships do not think the word carriage in the Law should be given this wide
meaning, having regard to the provisions of the Law and the schedules thereto, regarded as a whole. But
even if this word is given this wide meaning their Lordships are of the view that a tractor cannot be said to be
a carriage. The only thing it carries is the driver, but the purpose for which a tractor is used is not the
purpose of carrying a driver. Their Lordships do not think that that which carries a driver for the purpose of
driving it can for that sole reason be said to be a carriage.
In the case of Simpson v Teignmouth & Shaldon Bridge Co ([1903] 1 KB 405, 72 LJKB 204, 88 LT 117,
67 JP 65, 51 WR 545, 19 TLR 225, 47 Sol Jo 278, 1 LGR 235, CA, 26 Digest 348, 756) Lord Halsbury made
an observation very relevant to the present case. He said that the word carriage in a statute should be
interpreted to mean what would, in an ordinary sense, be considered to be a carriage (by whatever specific
name it might be called) in the contemplation of the legislature at the time the 135 Act was passed. Their
Lordships find it difficult to imagine that, in however wide a sense the word carriage was used in the Law of
1895, the legislature could have intended articles of the weight and complexity of the tractors and trailers
under consideration to be covered by the term. In this connection another observation of Lord Halsbury in
the same case has to be borne in mind. He was considering the word in a taxing statute and he said it is
not immaterial to observe what the taxation was. In the Wharfage Law wharfage corresponds to tax and it
is not immaterial to consider how the matter stands in respect of wharfage. The item it will be seen makes
no reference to weight. It is difficult to imagine that the legislature could have contemplated the same
amount being paid for a horse-drawn carriage and for a tractor weighing 18,000 lbs.

The Court of Appeal after quoting a passage from the judgment in the Teignmouth case (Simpson v
Teignmouth & Shaldon Bridge Co [1903] 1 KB 405, 72 LJKB 204, 88 LT 117, 67 JP 65, 51 WR 545, 19 TLR
225, 47 Sol Jo 278, 1 LGR 235, CA, 26 Digest 348, 756) said:
It is true that there has been a considerable development in that type of carriage since the 1895
Law was passed, but if what is in the ordinary sense known as a carriage at the time the Legislature
passed the Law is still substantially within that definition by whatever name it may now be called, we
think that for purposes of the Wharfage Law it comes within the word carriage.
Their Lordships are unable to accept this reasoning. It appears to suggest that a tractor (and a trailer)
would have been in the ordinary sense known as a carriage at the time the Legislature passed the Law if it
had then been in existence. Their Lordships cannot accept this view. A suggestion that wheels made all
the difference was made in the course of the argument and is illustrated in a passage from the evidence of
a witness who said:
Plaintiff firm contends that they are carriages. If a mechanical crane had four wheels I would
regard it as a carriage. If it had no wheels I would regard it as machinery falling under heavy lifts. A
caterpillar tractor would be heavy lifts. The wheels make the difference in my opinion.
Their Lordships are unable to agree.
It was argued that there should be nothing extraordinary in regarding tractors and trailers as carriages
because motor vehicles sometimes weighing up to 4,000 lbs. were rated as carriages. This happens as a
consequence of s 2 (2) of the Road Traffic Law, Cap 310 [J], which enacts:
Every motor vehicle shall be deemed for any purpose, to be a carriage within the meaning of any
Law of this Island and of any Rules, Regulations or Bye-laws made under any Law of this Island, and if
used as a carriage of any particular class shall be deemed to be a carriage of that class, and the Law
relating to carriages of that class shall apply accordingly.
It would appear that for special considerations special provision was made for motor vehicles. The
section just quoted gives some force to the argument that but for the statutory provision a motor vehicle
would not be a carriage.
It was sought for the first time on this appeal to argue that tractors and trailers were motor vehicles
within the meaning of the Road Traffic Law.
A motor vehicle is defined thus in the Law:
motor vehicle means any mechanically propelled vehicle intended or adapted for use on roads.
It must be presumed that the question whether the tractors and trailers were motor vehicles within the
meaning of the Statute had been considered by the respondents and their advisers for the purposes of the
proceedings in Jamaica. It was not raised in the courts there, possibly for good reason. It 136 cannot be
entertained on this appeal as it involves questions of fact in addition to questions of law.
The conclusions of the Court of Appeal were founded partly on an examination of the history of the
legislation which had to be applied. The relevant law is to be found as Cap 281 in the Revised Edition of the
Laws Of Jamaica which came into force on 1 August 1938. This edition of 1938 came into being as the
result of provision for revision made in the Revised Edition (Laws Of Jamaica) Law appearing as Cap 2 in
the Revised Edition. Section 7 provided that the powers of revision conferred on the revising commissioner
shall not be taken to imply any power in him to make any alteration or amendment in the matter or
substance of any Act or Law or part thereof.
Consequently the Court of Appeal considered the law applicable as one that had been passed in 1895.
In the two items
Carriages of four wheels, including wheels
Carts and carriages of two wheels
the word carts appears for the first time in 1895 in the series of laws dealing with wharfage. Upon a line of
argument which their Lordships do not think necessary to repeat, the Court of Appeal came to the
conclusion that the intention of the Legislature was that carriages included carts and that the word
carriages was used as a generic term. As against this, an argument of great force arisesnamely that if
the word carriages included carts, there was no need to use the word carts at all, and that its use for the
first time in 1895 would be unintelligible except upon the basis that the word carriage was not used as a
generic term including carts. On a consideration of this and other instances their Lordships, though

conscious that the history of legislation can often throw a great deal of light, are of opinion that it does not in
the present case afford inferences sufficiently clear and unequivocal as to what was in the mind of the
legislature when it adopted the language which has now to be applied.
It is not contended, and it does not appear, that the articles in question are covered by any other item in
the Schedules, and their Lordships are therefore of opinion that the articles are goods not particularly
enumerated and set forth in the Schedules. Their Lordships find it unnecessary to decide whether or not
the goods are machinery because they undoubtedly fall within the term heavy packages.
There was no express agreement as to what wharfage should be paid for these articles. In one
previous instance the respondents had been charged wharfage by the appellants for similar articles under
the item relating to carriages. The appellants say that that charge had been made in error by one of their
officers. The respondents had paid the heavy lift rates in the Shipping Association rates on other goods,
but not on goods of the same description as those now under consideration. A tacit agreement to pay the
Shipping Association charges for these articles is not lightly to be inferred in these circumstances. The
evidence is not strong enough to support the suggestion that the Shipping Association charges constituted
an offer which the respondents must be deemed to have known and tacitly accepted. When the question of
payment arose between the parties, the respondents at the very outset asserted that another basis of
payment was the correct one. They had in fact been earlier charged on that basis. Their Lordships do not
think that a special agreement within the meaning of s 16 (9) can be said to have been made.
As a consequence of the conclusions arrived at by their Lordships, and of the agreement between the
parties, the appellants are entitled to reasonable remuneration for the use of their wharves and for the
services rendered by them in respect of the tractors and trailers landed. The case should be sent back to

137
the Resident Magistrate for his remuneration to be assessed on such material as may be put forward by
the parties.
For the reasons which they have given their Lordships will humbly advise Her Majesty that the decree of
the Court of Appeal be set aside and the case sent back to the Resident Magistrates Court for that court to
assess what is a fair and reasonable charge for the use of the appellants wharves and for the services
rendered by the appellants in respect of the tractors and trailers landed on their wharves, and that judgment
be entered on the basis that the sum so assessed was due to the appellants. The respondents must pay to
the appellants two-thirds of their costs of this appeal and in the Court of Appeal. The Resident Magistrate,
after determination of the sum payable to the appellants, will make such order as he thinks right as to costs
in respect of the original trial and in respect of the further enquiry now directed.
Appeal allowed. Case remitted to Resident Magistrate for assessment of charges.

(1959) 1 WIR 138

Wright v Williams And Williams

SUPREME COURT OF JAMAICACOURT OF APPEAL
MACGREGOR CJ, COOLS-LARTIGUE AND DUFFUSS JJ
10, 11 MARCH, 14 APRIL 1959

Easement Restrictive covenants Artificial water course Nuisance Registration of Titles Law, Cap 340
[J]
The appellants and the respondent purchased lands from a common vendor. There were irrigation canals
passing over their respective lands for the supply of water from the Rio Cobre Irrigation Works. Restrictive
covenants were endorsed on the certificates of title of the different owners, expressed to be binding on the
registered proprietor for the time being and to run with the land, requiring the registered proprietor to permit
the free and undisturbed flow of water through the canals together with ancillary provisions to protect the
rights of the other registered proprietors, which rights were also endorsed on the respective titles. The
appellants obstructed and blocked the canals, thereby depriving the respondents land of water, with
consequent damage to his growing crops.
On appeal it was submitted that the respondents claim for damages must fail as he had not proved that the
covenants in their respective titles were mutually enforceable nor was there any evidence that the lands
were sold under a building scheme and further that it was a condition precedent to his right of redress that
on a strict interpretation of the covenants he should have had at the relevant time a valid contract in his own
name with the Rio Cobre Irrigation Works for the supply of water.

Held: (i) that by virtue of the provisions of s 84 of the Registration of Titles Law, Cap 340 [J], an easement
had been granted to the respondent over other lands of the common vendor now owned by the appellants;
(ii) that the effect of the subsequent transfers had been to transfer to the appellants the burden of the
negative restrictive covenants contained in their titles;

138
(iii) that it was not necessary for the respondent to have a contract in his own name for the supply of water
and that he was entitled to redress so long as his right to the flow of water had been interfered with.
Re Ecclesiastical Commissioners for Englands Conveyance (2) followed.
Appeal dismissed.
Cases referred to
Elliston v Reacher [1908] 2 Ch 665, 78 LJ Ch 87, 99 LT 701, CA, affg [1908] 2 Ch 374, 40 Digest (Repl) 337,
2749
Re Ecclesiastical Commissioners for Englands Conveyance [1936] Ch 430, [1934] All ER Rep 118, 105 LJ
Ch 168, 155 LT 281, 40 Digest (Repl) 338, 2762
Dyson v Forster, Dyson v Seed, Quinn, Morgan, etc [1909] AC 98, 78 LJKB 246, 99 LT 942, 25 TLR 166,
affg. Forster v Elvet Colliery Co, Ltd [1908] 1 KB 629, 34 Digest 686, 799
Whitmores (Edenbridge), Ltd v Stanford [1909] 1 Ch 427, 78 LJCh 144, 99 LT 924, 25 TLR 169, 53 Sol Jo
134, 19 Digest 150, 1028
Watts v Kelson (1871), 6 Ch App 166, 40 LJCh 126, 24 LT 209, 35 JP 422, 19 WR 338, LJJ, 19 Digest 45,
250
Appeal
Appeal from the decision of the Resident Magistrate, St Catherine.
Blake QC (instructed by Lewin) for the appellants
Coore (instructed by Penso) for the respondent
Cur adv vult.
DUFFUS J delivered the judgment of the court: This is an appeal by the defendants from the judgment of
the Resident Magistrate for St Catherine awarding damages to the respondent for the obstruction of the flow
of water in an irrigation canal leading to the respondents land at Bushy Park in St Catherine. The learned
Resident Magistrate found as a fact that both appellants had obstructed and blocked the canal where it
passed through the land of the appellant Albert Williams, which adjoined that of the respondent, thereby
depriving the latters land of water with consequent damage to his growing crops.
The certificate of title for the respondents land and the respective registered transfers to each of the
appellants for their lands were tendered in evidence.
The appellants and the respondent purchased their respective lands from Harold Dayes & Others at
about the same time. The respondents certificate of title was originally issued in the names of Harold
Dayes & Others, vesting in them as joint tenants in fee simple the lands described therein, being part of
Bushy Park,
together with the right by themselves and/or their tenants, servants, agents or licensees and in
common with all other persons having the like right:
1. To utilise existing irrigation canals . . . on the lands comprised in the Certificate of Title . . .
(which said lands are hereinafter referred to as Bushy Park) for the purpose of conveying water to the
land comprised in this Certificate of Title (hereinafter called the said land) and of taking, using and
enjoying the said water Provided that there is in force with the Rio Cobre Irrigation Works a valid
agreement for the supply of such water to the said land and Provided Also that this right shall not
confer any authority on such registered proprietor to take more water than is contracted for in the said
agreement.
Two other rights endorsed on the title give the registered proprietor the right to enter land of any other
registered proprietor of lands at Bushy Park for the purpose of inspecting the canals and other works for
carrying water to his land, to lead water from such land to his land, and to remove, after due notice, any
obstruction preventing the flow of water to his land.

139
Endorsed also on the certificate were encumbrances which were stated to be binding on the registered
proprietor for the time being, and to run with the land. They required the registered proprietor to permit the
free and undisturbed flow of water through the canals and other works on his land, to do nothing whereby
that free flow is diminished or interfered with, to maintain and keep in good repair the canals and other
works, to take all steps to secure the free and continuous flow of water over his land and to permit the
registered proprietor for the time being of any part of Bushy Park to enter his land to inspect the canals and
other works and, if necessary, to remove any obstruction found therein.
By a transfer registered on 11 September 1956, the said Harold Dayes & Others transferred all their
estate in the land comprised in this certificate of title to the respondent and Blanche Tugman, who
subsequently became his wife.
By transfers dated 18 December 1956, and 27 June 1957, respectively, and lodged with the Registrar of
Titles, Harold Dayes & Others transferred other lands part of Bushy Park to the two appellants and their
respective wives. These transfers, which were executed by the appellants, contained similar provisions
regarding the water rights to those in the respondents certificate of title. The relevant covenant reads as
follows:
and in consideration of the said Transfer the Purchasers [ie the appellants] for themselves their
heirs executors administrators and transferees Hereby Covenant with the vendors their executors
administrators and transferees that they will not do or cause to be done any act matter or thing
whereby the rights and liabilities set out in the Second Schedule hereto shall in any way be infringed or
abrogated and that this Covenant shall at all times run with the land.

****
second schedule
1. That the registered proprietors for the time being of the said Lot (more particularly described in
the First Schedule hereto and hereinafter referred to as the said Lot) shall have the rights and be
subject to the obligations set out hereunder, to wit:
(a) The right by themselves and/or their tenants servants agents or licensees and in common with
all other persons having the like rights:
(1) To utilise existing irrigation canals . . . on the lands comprised in the Certificate of Title . . .
(which said lands are hereinafter referred to as Bushy Park) for the purpose of conveying water to the
said Lot and of taking, using and enjoying the said water Provided that there is in force between such
registered proprietor and the Rio Cobre Irrigation Works a valid agreement for the supply of such water
to the said Lot and Provided Also that this right shall not confer any authority on such registered
proprietor to take more water than is contracted for in the said agreement.
The transfers contained also, other provisions which were expressed in terms almost identical to those
used in the title of the respondent. These were the right to enter lands of other registered proprietors of
Bushy Park, and the encumbrances to permit the free flow of water across their lands, and to permit other
registered proprietors to enter their lands to ensure that free flow, or to remove obstructions.
It is to be observed that there is a difference in the wording of the first proviso of Clause 1 of the
Rights in the respondents certificate of title and the appellants transfers. In the appellants transfers it is
clearly stated that the agreement for the supply of water must be between the registered proprietor of the Lot
and the Rio Cobre Irrigation Works, whereas in the respondents 140 certificate of title it does not set out the
words between such registered proprietor.
There were several grounds of appeal, but the main grounds argued before us were:
(1) That the plaintiff failed to prove that the covenants in his certificate of title and the defendants
transfers were mutually enforceable, and if the existence of mutually enforceable covenants was
established by the documents then all three documents should be read together for the purpose of
determining the terms of the covenants.
(2) That the plaintiff had failed to prove that he had a valid agreement with the Rio Cobre Irrigation
Works for the supply of water to his land and that the existence of such an agreement was a condition
precedent to the right to redress.
With regard to the first ground, it was submitted by learned counsel for the appellants that the only way
the covenant could be mutually enforceable would be if the lots were sold subject to a building scheme
(Elliston v Reacher ([1908] 2 Ch 665, 78 LJ Ch 87, 99 LT 701, CA, affg [1908] 2 Ch 374, 40 Digest (Repl)

337, 2749), [1908] 2 Ch at pp 384-385), and that there was no evidence that these lots were sold subject to
such a scheme.
Learned counsel for the respondent conceded this, but submitted it was not necessary to prove a
building scheme as the doctrine in Elliston v Reacher ([1908] 2 Ch 665, 78 LJ Ch 87, 99 LT 701, CA, affg
[1908] 2 Ch 374, 40 Digest (Repl) 337, 2749) only applied to the burden of negative covenants and not to
the benefit. In Re Ecclesiastical Commissioners for Englands Conveyance ([1936] Ch 430, [1934] All ER
Rep 118, 105 LJ Ch 168, 155 LT 281, 40 Digest (Repl) 338, 2762) ([1936] Ch at pp 436, 437) Luxmoore J,
said:
Having ascertained that restrictive covenants were imposed in respect of the West Health House
property and that the form of the covenants is such as to make the burden of them run with the land, it
is necessary to consider whether they were imposed for the benefit of any and what other
hereditaments. For it is well settled that, apart from any building scheme, restrictive covenants may be
enforced if they are expressed in the original deed to be for the benefit of a particular parcel or
particular parcels of land, either expressly mentioned or clearly identified in the deed containing the
original covenants .... In the case of Forster v Elvet Colliery Co, Ltd (Dyson v Forster, Dyson v Seed,
Quinn, Morgan, etc [1909] AC 98, 78 LJKB 246, 99 LT 942, 25 TLR 166, affg. Forster v Elvet Colliery
Co, Ltd [1908] 1 KB 629, 34 Digest 686, 799) it was held that the condition or covenant referred to . . .
must, in order to be enforceable by a person not a party to the deed, be one, the benefit of which runs
with the land of the person seeking to enforce it. The actual decision was upheld in the House of Lords
under the name Dyson v Forster, (Dyson v Seed, Quinn, Morgan, etc, [1909] AC 98, 78 LJKB 246, 99
LT 942, 25 TLR 166, affg. Forster v Elvet Colliery Co, Ltd [1908] 1 KB 629, 34 Digest 686, 799). ...
With regard to the second main ground, learned counsel for the appellants submitted that even if it was
held that the covenants were mutually enforceable or that a negative easement had been created, the
respondents right to claim damages depended on his establishing as a condition precedent that there was
in existence at the date of the blockage a valid contract between himself and the Rio Cobre Irrigation Works,
by reason of the proviso to the covenant, and that the evidence disclosed that there was no such contract.
Learned counsel for the respondent agreed that at the material time there was no contract existing
between the respondent and the Irrigation Works, but submitted that this was of no relevance as there was
clear evidence, which had been accepted by the learned Resident Magistrate, that the Rio Cobre Irrigation
Works were in fact at the material time, ie immediately before the blockage and immediately after the
blockage had been cleared, supplying water to the respondents land under a contract then subsisting
between the common vendors (Dayes & Others) and the Irrigation Works.
The respondents case was:

141
(i) that he had an easement in respect of an artificial water-course over the lands of the appellants
and that this easement was granted to him by the transfer of the land to him, and by virtue of the
provisions of the Registration of Titles Law, Cap 340 [J], and that any person who interfered with the
exercise of that easement was liable in an action sounding in nuisance.
(ii) in the alternative, if the respondent did not have an easement, that nevertheless the appellants
were bound by the negative covenants contained in the transfers to them which were enforceable by
the respondent.
We were referred to 12 Halsburys Laws, 3rd Edn, at p 598, para 1298, which reads:
The existence of every artificial water-course, unless constructed and used by a landowner solely
upon his own land, involves the existence of an easement. Such an easement may be created by
express grant ....
In Whitmores (Edenbridge), Ltd v Stanford ([1909] 1 Ch 427, 78 LJCh 144, 99 LT 924, 25 TLR 169, 53
Sol Jo 134, 19 Digest 150, 1028) ([1909] 1 Ch at pp 434-435) Eve J, said:
I should have been prepared to hold that in cases where an artificial channel or cut passes by or
through the lands of several proprietors, and water flows therein to serve the purposes of a lower
proprietor, the proper grant to presume, in the absence of all evidence as to the terms and conditions
upon which the channel was originally made, is the grant of a water-coursethat is, of the easement or
right to the running of water, but it is really not necessary.
It is true this statement of the learned Judge may be said to be obiter dicta but we make reference to it
because it appears to us to support the proposition in 12 Halsburys Laws, 3rd Edn, at p 598, para 1298.

Halsbury (supra), para 1299, reads:

Where there is in existence an express grant of an easement or an express agreement relative to
the construction and continuance of an artificial water course, the rights of all parties depend, of
course, upon its terms.
We take the view that by virtue of the provisions of the Registration of Titles Law, Cap 340 [J], s 84, the
effect of the transfer by Dayes & Others to the respondent, registered on 11 September 1956, was to grant
an easement to the respondent over other lands of Dayes & Others and that the effect of the subsequent
transfers to the appellants was to transfer to them the burden of the negative restrictive covenants contained
in the certificates of title to their lands.
Further, it seems clear to us that apart from the express grant of an easement to the respondent, the
form of the covenants is such as to make the burden of them run with the land and that they could be
enforced by the respondent, being specifically expressed to be for the benefit of the registered proprietor or
proprietors for the time being of any part of Bushy Park. (See Re Ecclesiastical Commissioners for
Englands Conveyance ([1936] Ch 430, [1934] All ER Rep 118, 105 LJ Ch 168, 155 LT 281, 40 Digest (Repl)
338, 2762).)
We are of the opinion that any interference with the respondents rights gave rise to a right to an action
for damages and that it was not necessary for the respondent to have a contract in his own name for the
supply of water to his land.
In Watts v Kelson ((1871), 6 Ch App 166, 40 LJCh 126, 24 LT 209, 35 JP 422, 19 WR 338, LJJ, 19
Digest 45, 250) ((1871), 6 Ch App at p 175) Mellish LJ, delivering the judgment of the court, said:
It was further objected, that the fact of the plaintiff having pulled down the cattle-sheds and erected
cottages in their place, deprived him of the right to the use of water. We are of opinion, however, that
what passed to the plaintiff was a right to have the water flow in the accustomed manner through 142
the defendants premises to his premises, and that when it arrived at his premises he could do what he
liked with it, and that he would not lose his right to the water by any alteration he might make in his
premises.
By analogy it seems to us that in this instant case the respondent had a similar right and that it could be
no possible concern of the appellants that the respondent did not have a contract in his own name with the
authority supplying the water. What had been interfered with was his right to the flow of water in the
accustomed manner in a defined channel over the land of the appellant, Albert Williams.
While we do not agree with all the reasons of the learned Resident Magistrate, nevertheless we feel that
the conclusion at which he arrived was correct and that the respondent was entitled to damages.
The appeal will be dismissed with costs 12.
Appeal dismissed.

(1959) 1 WIR 143

Walker v Clarke
SUPREME COURT OF JAMAICACOURT OF APPEAL
MACGREGOR CJ, COOLS-LARTIGUE AND DUFFUS JJ
13, 17, 20 MARCH 1959

Factory Dangerous machinery Dough brake machine in bakery Duty to fence securely Whether
machine dangerous a question of degree and fact View of machine by the court Contributory negligence
Factories Law, Cap 124 [J] Factories Regulations, 1943 [J], reg3.
A machine used for rolling pastry at a bakery was not provided with any fence to prevent the operators
hands coming in contact with the rollers. There was a switch within easy reach of the operator for switching
on and off the electric motor which drove the machine and in addition there was a fixed bar in front of the
machine which, on the slightest pressure, would stop the motor. The machine had a revolving turntable to
feed the dough to the rollers, but as this did not appear to work satisfactorily the operator, on the instructions
of the defendant, fed the dough to the rollers with his hands which had of necessity at all times to be in close
proximity to the rollers.

The plaintiff, while operating the machine, put his hand too close to the revolving rollers, to remove a bit of
foreign matter, and his fingers were crushed.
By reg 3 of the Factories Regulations, 1943 [J]: Every dangerous part of any machine shall be securely
fenced unless it is in such a position or of such construction as to be as safe to every worker as it would be if
securely fenced.
Held: that the rollers were dangerous to the operator and as it was not fenced the defendant was in breach
of the statutory duty cast on him to fence. In the circumstances of this particular case the plaintiff was not
guilty of contributory negligence by failing to stop the machine before attempting to remove the foreign
matter.
Carr v Mercantile Produce Co, Ltd (1), Summers (John) & Sons, Ltd v Frost (2) and Smith v Chesterfield
and District Co-operative Society, Ltd (4) followed.
Appeal dismissed.

143
Cases referred to
Carr v Mercantile Produce Co, Ltd [1949] 2 All ER 531, [1949] 2 KB 601, [1949] LJR 1597, 113 JP 488, 65
TLR 503, 93 Sol Jo 588, 47 LGR 642, DC, 2nd Digest Supp
Summers (John) & Sons, Ltd, v Frost [1955] 1 All ER 870, [1955] AC 740, 99 Sol Jo 257, 53 LGR 329, HL,
affg sc sub nom Frost v John Summers & Sons, Ltd, [1954] 1 All ER 901, CA, 24 Digest (Repl) 1055,
217
Mitchell v North British Rubber Co [1945] SC (J) 69, 24 Digest (Repl) 1056, *100
Smith v Chesterfield and District Co-operative Society, Ltd [1953] 1 All ER 447, 97 Sol Jo 132, 51 LGR 194,
CA, 24 Digest (Repl) 1051, 193
Flower v Ebbw Vale Steel, Iron & Coal Co, Ltd [1934] 2 KB 132, 103 LJKB 465, 151 LT 87, 78 Sol Jo 154,
CA, revsd on other grounds, [1936] AC 206, HL, Digest Supp
Appeal
Appeal from the decision of a Resident Magistrate, Kingston.
Alberga (instructed by Judah & Randall) for the appellant
Leacroft Robinson (instructed by Lewin) for the respondent
MACGREGOR CJ delivered the judgment of the court: This is an appeal by the defendant from the
judgment of a Resident Magistrate, Kingston, in which he awarded the respondent damages for injuries
sustained by him when his fingers were crushed in a dough-brake machine which he was operating at the
appellants bakery. The appellant submitted that the learned Resident Magistrate erred in concluding that
the machine was dangerous in breach of reg 3 of the regulations made under the Factories Law, Cap 124
[J], and, alternatively, that the respondent was negligent. At the close of the arguments we dismissed the
appeal but promised to put our reasons in writing. This we now do.
The dough-brake machine was described in the evidence tendered before the Resident Magistrate, and
was inspected by him. The members of this court also had the advantage of doing likewise in the presence
of the parties. We were fortunate in that we saw it in operation with the respondent working it. It is used for
the kneading of dough, and is operated mechanically. It was operated by the respondent, whose duties
were to direct the dough into the rollers, to receive the dough from them and to re-direct it back in. This
continued until the dough was properly kneaded. The rollers are at the back of the machine. As the dough
comes in contact with them it is, by their action, pulled between them and passed through and up, coming
out at the top where it is directed forward towards the front of the machine. To prevent the dough falling
back on the rollers there is a shelf, perhaps some six inches wide, extending over and forward from them.
As the dough is ejected and falls from the shelf, the operator catches it, gives it a twist to make it more bulky,
and again directs it back towards the rollers. Immediately in front of them and extending out about two feet
is a circular turntable, slightly convex in shape. At its nearest point it is perhaps 2 or 2 inches from the
rollers. The operator stands in front of the turntable to operate the machine. When we saw the respondent
operating it he stood more to one side than directly in front, and was much nearer to the rollers. The
machine is electrically driven and is easily turned on and off by a switch beside it and within arms reach of
the operator as he stands in front of it. In addition, around the front of the turntable is a fixed bar and upon
the slightest pressure of hand or body against it the machine is immediately switched off. Upon being
switched off it stops, almost instantaneously.

144
As the lump of dough to be kneaded is placed on the turntable by the operator, the machine is started.
The table, as it turns, carries the dough towards the rollers at the back. The convex shape of the table tends
to throw the lump of dough against the rollers so that the dough can be caught by them. But to make sure
that the dough is taken up by them, the operator with his fists, or his open hands, which the respondent used
when we saw him operating the machine, pushes the dough against the rollers. As the dough comes over
the shelf, he twists it and again pushes it towards the rollers. It is to be remembered that the shelf is only
about six inches wide, therefore the dough falls on the rear half of the turntable, so that the operator now
works much nearer to the rollers than when he started. It is plain to see that as he starts to push the dough,
his hands immediately go under the shelf. The more he pushes the nearer his hand gets to the rollers. The
less dough he has in front of him the quicker his hand goes towards the rollers. There is no fence or other
protection to prevent his hands coming in contact with the rollers.
On 25 February 1958, when the respondent was operating the machine, he was kneading dough for
bread. He saw a piece of dough for patties on the machine near the other dough. If that dough had been
caught up with the bread dough it would have spoilt the latter. He attempted to remove the patty dough at a
time when it was under the shelf and was going towards the rollers. In this attempt his fingers were caught
between the rollers and he was injured.
Regulation 3 of the Factories Regulations, which are to be found at p 125 of the Jamaica Gazette Pr
And O, 1943, reads as follows:
Every dangerous part of any machine shall be securely fenced unless it is in such a position or of
such construction as to be as safe to every worker as it would be if securely fenced.
This regulation is almost the same as s 14 (1) of the Factories Act, 1937 [UK], except that this latter has, in
addition, a proviso, to which reference will be made later.
In our judgment the learned Resident Magistrate correctly stated the questions which arose for his
decision. They are:
(1) Are the rollers a dangerous part of the machinery? If the answer to question (1) is yes, then,
(2) Is that dangerous part securely fenced?
If the answer to that question is no, then,
(3) Is the machine in such a position or of such a construction as to be as safe to every worker as it
would be if securely fenced?
In a careful and well-reasoned judgment the learned Resident Magistrate answered all these questions
in favour of the respondent and we agree with him. We would be content to adopt his reasoning, but as we
were informed that the machine is the very latest model and is used in the leading bakeries in Jamaica, it is
as well that we express our own reasons.
That the learned Resident Magistrate correctly expressed the first two questions he had to decide is
clear. In Carr v Mercantile Produce Co, Ltd ([1949] 2 All ER 531, [1949] 2 KB 601, [1949] LJR 1597, 113 JP
488, 65 TLR 503, 93 Sol Jo 588, 47 LGR 642, DC, 2nd Digest Supp) ([1949] 2 KB at p 607) Stable J, said:
Now it appears to me that these findings [ie of the Magistrate] may mean, either, that even in the
absence of the guard the worm was not dangerous or that the worm, situated as it was at the time of
the accident, beneath the guard, was not a dangerous part of the machine for the reason that though
without the guard it would have been dangerous, the guard rendered it innocuous or in other words
that a dangerous part of the machine was securely fenced.
To avoid any possible ambiguity in future cases, in my judgment, the proper approach where there
is a machine with a guard, is first, to inquire whether 145 in the absence of the guard any part of the
machine could properly be described as dangerous. If the answer is no, the adequacy or otherwise of
the guard as a protection against a hypothetical but non-existent danger does not arise. It is only if the
first question is answered in the affirmative that the second question arises, namely, was the
dangerous part securely fenced in accordance with the Act?
In Summers (John) & Sons, Ltd v Frost ([1955] 1 All ER 870, [1955] AC 740, 99 Sol Jo 257, 53 LGR
329, HL, affg sc sub nom Frost v John Summers & Sons, Ltd, [1954] 1 All ER 901, CA, 24 Digest (Repl)
1055, 217) ([1955] 1 All ER at p 875) Lord Morton said:
As I read the section [14 (1) of the Factories Act, 1937 [UK]] only two questions arise on it in the
present case. They are: (i) Was the grinding wheel a dangerous part of the power-operated grinding
machine . . . within the meaning of s 14 (1) of the Act ? (ii) If so, was the wheel securely fenced,
within the meaning of the same section, at the time when the accident occurred?

It is to the first question that we now direct our attention. We refer again to the speech of Lord Morton in
the case just referred to. At p 875 he said:
In my opinion, in order to answer the first question stated above, one must disregard for the
moment such protection as has been provided, and consider only the wheel itself, which is a part of
the machinery, operated by power which can be turned on or off by any person at will . . .
Counsel for the appellant submitted that this court is in as good a position as was the Resident
Magistrate to draw inferences from the more or less admitted facts. Having seen the machine in operation,
we suppose that his submission is correct. But we cannot agree with him that in considering this first
question, the learned Resident Magistrate should have taken into consideration the presence of the bar
which upon pressure shut off the machine. To do so appears to us to be in direct conflict with the opinion,
both of Lord Morton and of Stable J, referred to above.
The test to be applied to ascertain whether a machine is or is not dangerous is that of reasonable
foreseeability of accident (per Lord Keith Of Avonholm in Summers (John) & Sons, Ltd v Frost ([1955] 1 All
ER 870, [1955] AC 740, 99 Sol Jo 257, 53 LGR 329, HL, affg sc sub nom Frost v John Summers & Sons,
Ltd, [1954] 1 All ER 901, CA, 24 Digest (Repl) 1055, 217) ([1955] 1 All ER at p 888)). In that case the
remarks of Lord Cooper in Mitchell v North British Rubber Co ([1945] SC (J) 69, 24 Digest (Repl) 1056, 100)
([1945] SC (J) at p 73) were referred to with approval, that a machine is dangerous if
. . . in the ordinary course of human affairs danger may reasonably be anticipated from its use
unfenced, not only to the prudent, alert and skilled operator intent upon his task, but also to the
careless or inattentive worker whose inadvertent or indolent conduct may expose him to risk of injury
or death from the unguarded part.
Counsel for the appellant relied on two statements. The first was by the respondent:
The only way ones fingers could get caught in rollers is if one puts fingers under the shelf and into
where rollers are situated.
Factually that statement is correct. To reach the rollers one has to put ones hand under the shelf, which, as
already stated, extends forward and over the rollers.
The other statement in the evidence was by the appellant:
One can only get the fingers into that roller if it is done deliberately or carelessly.
That appears to us to be an expression of his opinion, and as such, not 146 evidence. But in any event,
it is not complete. We can see no reason why it may not happen accidentally.
We have been referred to Smith v Chesterfield & District Co-operative Society, Ltd ([1953] 1 All ER 447,
97 Sol Jo 132, 51 LGR 194, CA, 24 Digest (Repl) 1051, 193). In that case the machine, which was held to
be a dangerous one, was used at a bakery to roll out puff pastry. It was provided with a guard which in the
circumstances was held inadequate. Whilst the question whether a machine is dangerous is one to be
decided on the facts in each case, the machine in this case appears to be not unlike the one in the instant
case, and supports the conclusion of the Resident Magistrate that the machine in the instant case was
dangerous.
In our judgment the learned Resident Magistrate was entitled to come to the conclusion that he did,
basing his opinion on the evidence he heard and on his view of the operation of the machine. Having
ourselves seen the machine in operation, we agree with him.
As to the second question, was the dangerous part of the machinery securely fenced, we entirely agree
with the learned Resident Magistrate who stated: this poses no problem as the rollers were not fenced at
all.
We pass to the third question: Is it in such a position or of such construction as to be as safe to every
worker as it would be if securely fenced?
The answer seems to us to be so obviously that it is not, as to need no further discussion. The words of
the regulation are as it would be if securely fenced. The rollers not being fenced at all, are dangerous to
the operator as he works the machine.
The learned Resident Magistrate commented on the proviso to the English section, s 14 (1), which is
not in our regulations. He expressed the opinion that if this machine were to be used in England, with the
safety device that it has for switching off the machine, it might be protected by the proviso. It is enough to
say that we do not agree with him. But as that opinion was expressed as obiter, it had no bearing on the
result of the case.

The appellant having therefore failed to comply with the regulations requiring him to fence dangerous
machinery, is liable in damages to the respondent. It remains to be considered whether the respondent was
guilty of contributory negligence.
The learned Resident Magistrate was of opinion that he tried to push away the patty dough while the
machine was in motion and in so doing his fingers got caught. When he felt the pain he went forward on the
bar and the machine stopped. I think he did exactly what any ordinary prudent workman in all the
circumstances would have done.... It only amounted to an error of judgment on his part.
In Flower v Ebbw Vale Steel, Iron & Coal Co, Ltd ([1934] 2 KB 132, 103 LJKB 465, 151 LT 87, 78 Sol Jo
154, CA, revsd on other grounds, [1936] AC 206, HL, Digest Supp) ([1934] 2 KB at p 140) Lawrence J, said:
I think, of course, that in considering whether an ordinary prudent workman would have taken more
care than the injured man, the tribunal of fact has to take into account all the circumstances of work in
a factory and that it is not for every risky thing which a workman in a factory may do in his familiarity
with the machinery that a plaintiff ought to be held guilty of contributory negligence.
We also refer to the judgment of Lord Cooper in Mitchell v North British Rubber Co ([1945] SC (J) 69,
24 Digest (Repl) 1056, 100) already referred to.
This was not the sort of action referred to by Somervell LJ, in the John Summers case (Summers (John)
& Sons, Ltd, v Frost [1955] 1 All ER 870, [1955] AC 740, 99 Sol Jo 257, 53 LGR 329, HL, affg sc sub nom
Frost v John Summers & Sons, Ltd, [1954] 1 All ER 901, CA, 24 Digest (Repl) 1055, 217) when in the Court
of Appeal ([1954] 1 All ER at p 903) he said:
It seems to me clear that he (the respondent) had a lapse or did something which I do not think
was, on the evidence, reasonably to be anticipated.

147
Counsel for the respondent submitted that the only cases where a workman in England was held to be
negligent were where he had acted in direct contravention of instructions given to him. He referred us to
Smith v Chesterfield & District Co-operative Society, Ltd ([1953] 1 All ER 447, 97 Sol Jo 132, 51 LGR 194,
CA, 24 Digest (Repl) 1051, 193) where the plaintiff in disregard of instructions, pushed her hand under the
guard which was provided. Oliver J, had held that the guard was a sufficient protection against anything but
a deliberate act and that the machine was securely fenced. The Court of Appeal rejected the defence that
the machine was securely fenced, but held that the plaintiff was negligent. Lord Goddard LCJ ([1953] 1 All
ER at p 448), said:
It is recognised that people in factories are not always careful, but, on the contrary, they are often
thoughtless and sometimes they do things deliberately which they ought not to do and which involve
themselves in injury. Fencing is intended to protect the careless and the ignorant as well as the careful
and the well instructed.
At p 449 he said:
The plaintiff, however, was guilty of contributory negligence, because she did a deliberate act
against which she had been warned and which she ought to have known was highly dangerous. That
the danger was foreseeable by the employers is clear, both because the guard was provided to
prevent it and because the employees were instructed about it. The guard was not adequate, but he
plaintiff was guilty of folly in doing what she did, in direct disobedience of orders.
There is no doubt that the respondent could, in a moment have stopped the machine, could have
retrieved the offending piece of patty dough, and could have re-started the machine. The question whether
the appellant had given instructions that the machine was not to be stopped in any circumstances has been
canvassed briefly before us but does not appear to have been canvassed before the learned Resident
Magistrate. We do not consider it, as there has been no finding of fact, although the evidence would appear
to support the respondents submissions that he was not negligent.
It appears to us that the act of the respondent in attempting to brush away the piece of dough was just
what one would reasonably expect a workman to do.
For these reasons we dismissed the appeal with costs fixed at 12.
Appeal dismissed.

148

(1959) 1 WIR 149

Henry v Henry
SUPREME COURT OF TRINIDAD AND TOBAGOAPPELLATE JURISDICTION
GOMES CJ, BLAGDEN AND PHILLIPS JJ
25 FEBRUARY, 20 MARCH, 22 APRIL 1959

Husband and Wife Maintenance Marriage under Muslim Marriage and Divorce Registration Ordinance,
Cap 29, No 4 [T] Application of Separation and Maintenance Ordinance, Cap 5, No 15 [T], s 3, to Muslim
Marriages.
A wife lawfully married under the provisions of the Muslim Marriage and Divorce Registration Ordinance,
Cap 29, No 4 [T], brought a complaint against her husband under the Separation and Maintenance
Ordinance, Cap 5, No 15 [T], s 3, for maintenance on the grounds of his wilful neglect to maintain her. The
magistrate found the complaint proved and made an order. The husband appealed. At the hearing of the
appeal further evidence was received (pursuant to the provisions of the Summary Courts Ordinance, Cap 3,
No 4 [T], s 146) from an expert witness in Islamic law and custom, which established that Muslim marriages
are potentially polygamous.
Held: (i) The only kind of marriage that entitles the parties thereto to the remedies, adjudication and relief of
the matrimonial law of England upon which the Trinidad and Tobago general law relating to marriage is
based, is a marriage that is monogamous in the Christian sense of the term.
(ii) A Muslim marriage not being monogamous in the Christian sense of the term, the magistrate had no
jurisdiction to make an order for maintenance in this case.
Dicta of Lord Penzance in Hyde v Hyde and Woodmansee (Hyde v Hyde & Woodmansee (1866), LR 1 P &
D 130, 35 LJP & M 57, 14 LT 188, 12 Jur NS 414, 14 WR 517, 11 Digest (Repl) 455, 906) (1866), LR 1 P &
D at pp 133 and 135) and of Barnard J, in Risk (otherwise Yerburgh) v Risk ([1950] 2 All ER 973, [1951] p
50, 66 (pt 2) TLR 918, 94 Sol Jo 707, 11 Digest (Repl) 458, 922) ([1950] 2 All ER at pp 974 and 975)
applied.
Appeal allowed.
Cases referred to
Hyde v Hyde & Woodmansee (1866), LR 1 P & D 130, 35 LJP & M 57, 14 LT 188, 12 Jur NS 414, 14 WR
517, 11 Digest (Repl) 455, 906
Risk (otherwise Yerburgh) v Risk [1950] 2 All ER 973, [1951] p 50, 66 (pt 2) TLR 918, 94 Sol Jo 707, 11
Digest (Repl) 458, 922
Appeal
Appeal by Joseph Henry against a maintenance order of the Magistrate of Cedros.
arguments are fully set out in the judgment of the court.

The facts and

Hyatali and Dolsingh (instructed by Norman Girwar) for the appellant

Borneo for the respondent
Cur adv vult
GOMES CJ delivered the judgment of the court: In this case the respondent instituted a complaint against
the appellant under s 3 of the Separation and Maintenance Ordinance, Cap 5, No 15 [T], requesting the
court to order him to pay her a weekly sum for her maintenance on the ground that he had been guilty of
wilful neglect to provide reasonable maintenance for her. At the hearing of the complaint, she proved that
she had married the appellant on 18 October 1942, under the provisions of the Muslim Marriage and Divorce
Registration Ordinance, Cap 29, No 4 [T]. She also stated that she went through another ceremony of
marriage with the appellant on 18 October 1952, which was performed by a minister of the Roman Catholic
Church, and in support she tendered a copy of an entry from the Marriage Register kept by the marriage
officer, relating to that ceremony. There was no dispute in the magistrates court as to the validity of the
Muslim marriage. The magistrate found that the parties were lawfully married according to the Muslim

Marriage and Divorce Registration Ordinance and 149 consequently was not obliged to deal and did not
deal with the alleged second marriage. In our view, therefore, no question in regard to the latter arises for
our consideration.
The magistrate who heard the complaint found that the parties had been lawfully married under the
Muslim Marriage and Divorce Registration Ordinance, that the appellant had left the matrimonial home on 23
April 1954, and that he had thereafter failed to provide reasonable maintenance for his wife. He overruled a
submission which was made by the appellants counsel that a woman who is married under Muslim rights
cannot be granted an order under the Separation and Maintenance Ordinance, and, therefore, made an
order against the appellant for payment to the respondent of the sum of $8 per week for her maintenance
and support. At the hearing of this appeal a similar submission was made. Counsel for the appellant
submitted that the magistrate had no jurisdiction to make an order in this case, or wrongfully assumed
jurisdiction in making such an order, because the parties to a Muslim marriage do not achieve the status of
husband and wife within the meaning of our matrimonial laws, and that as between each other they are not
entitled to the remedies or reliefs given by those laws, and that accordingly the respondent in this case is not
a married woman who would be entitled to obtain relief under the Separation and Maintenance Ordinance.
At the hearing of the appeal, counsel was granted leave to call a witness to give evidence on matters
pertaining to the Islamic law. The witness, whom the court considers to be sufficiently qualified to speak on
that topic, stated that under Islamic law a man is permitted to have four wives provided that he acts equitably
between them.
In support of his submission, counsel for the appellant drew the notice of the court to a variety of
matters. He pointed out that the Marriage Ordinance, Cap 29, No 2 [T], is, according to its long title, an
Ordinance relating to the solemnisation and registration of marriages whereas the long title of the Muslim
Marriage and Divorce Registration Ordinance speaks only of An Ordinance relating to the registration of
Muslim Marriages and Divorces. He also indicated the total absence of the verb solemnise and its
grammatical variations in the Muslim Marriage and Divorce Registration Ordinance whereas the contrary is
the case in the Marriage Ordinance. A perusal of these two Ordinance shows that a marriage is effected
under the Muslim Marriage and Divorce Registration Ordinance, whereas it is solemnised or contracted
under the Marriage Ordinance and also under the Hindu Marriage Ordinance, Cap 29, No 5 [T].
In furtherance of this argument, counsel for the appellant submitted that Islamic law is not part of the
law of the Colony and is, in fact, highly repugnant to local matrimonial law, in that polygamous marriages
between Muslims are recognised. Another observation made by counsel was that whereas under s 3 of the
Legitimation Ordinance, Cap 5, No 13 [T], the fact of marriage makes children legitimate, children who are
the offspring of Muslim marriages are not legitimated unless the marriage is registered (see s 15, Cap 29,
No 4). Counsel concluded by submitting that the whole object of the Muslim Marriage and Divorce
Registration Ordinance was to provide for the appointment of marriage and divorce officers to deal with
Muslim marriages, to prescribe the requisites of valid Muslim marriages and divorces and to provide for the
legitimation of the offspring of such marriages.
In reply to those submissions, counsel for the respondent submitted that although the Muslim Marriage
and Divorce Registration Ordinance made special provision for the registration of Muslim marriages and
divorces, yet there is nothing in that Ordinance or in any other law that precludes the application of the
matrimonial law in other respects to such marriages; that the status of persons who marry according to
Muslim rites is that of husband and wife because 150 the validity of a Muslim marriage is recognised by law
and therefore the parties are entitled to any benefits or reliefs to which the parties to Christian marriages are
entitled, except, of course, in regard to divorce.
In support of his submissions counsel also referred to the provisions of s 20 (3) of the Judicature
Ordinance, Cap 3, No 1 [T], which is as follows:
(3) Nothing herein shall authorise the court to make any decree of dissolution of marriage where
the parties to the marriage have been married pursuant to the provisions of the Immigration (Indian)
Ordinance or the Muslim Marriage and Divorce Registration Ordinance.
He referred to that subsection as reinforcing his submission that the general personal law of the land is
applicable to Muslims except where otherwise expressly excluded.
The question for determination by the court is whether a marriage effected in accordance with the
provisions of the Muslim Marriage and Divorce Registration Ordinance is such as to confer upon the parties
thereto the status of married woman and husband in the sense in which these terms are used in s 3 of
the Separation and Maintenance Ordinance.
It is a well-established principle of law that the only kind of marriage that entitles the parties thereto to
the remedies, adjudication or relief of the matrimonial law of England (which is the basis of our general law
relating to marriage) is a marriage that is monogamous in the Christian sense of the term. In this connection
reference may be made to the following oft-quoted dicta of Lord Penzance in Hyde v Hyde and
Woodmansce ((1866), LR 1 P & D at pp 133 and 135):

I conceive that marriage, as understood in Christendom, may for this purpose be defined as the
voluntary union for life of one man and one woman to the exclusion of all others.
Now, it is obvious that the matrimonial law of this country is adapted to the Christian marriage, and
is wholly inapplicable to polygamy. The matri monial law is correspondent to the rights and obligations
which the contract of marriage has, by the common understanding of the parties, created.
IN Diceys Conflict Of Laws (6th Edn at pp 222-223) the following statement appears:
It seems clear that this limitation of the jurisdiction of the court applies, not only to divorce, as in
Hyde v Hyde & Woodmansee ((1866), LR 1 P & D 130, 35 LJP & M 57, 14 LT 188, 12 Jur NS 414, 14
WR 517, 11 Digest (Repl) 455, 906), but also to judicial separation, restitution of conjugal rights and
applications for maintenance.
In Risk (otherwise Yerburgh) v Risk ([1950] 2 All ER 973, [1951] p 50, 66 (pt 2) TLR 918, 94 Sol Jo 707,
11 Digest (Repl) 458, 922) the facts were as follows:
In 1938 the wife, an Englishwoman domiciled in England, went through a ceremony of marriage
according to Moslem rites at Alexandria, Egypt, with the husband who was a Moslem by religion and
domiciled in Egypt. According to the marriage contract, the husband was entitled to have more than
one wife, but he had not, in fact, married a second time. The parties lived together in Egypt until June
1946, when the wife left the husband and returned to England where she had since resided. It was
established that the ceremony constituted a valid marriage according to the law of Egypt. On 27 April
1950, the wife petitioned for a decree of nullity on the ground that at the time of the ceremony, when
she was domiciled in England, she was incapable of contracting a polygamous marriage, and,
therefore, the marriage was void ab initio.
HELD in spite of its extended jurisdiction under the Law Reform (Miscellaneous Provisions) Act,
1949 [U K], s 1 (1) and (2), the court could not entertain a petition seeking relief from a polygamous
marriage since a party to

151
such a marriage was not entitled to an adjudication in accordance with the matrimonial law of
England.
In the course of his judgment in the last-mentioned case Barnard J, stated ([1950] 2 All ER at pp 974975):
The question I have to consider is in what sense the terms husband and wife are used in this
section. Lord Penzance, in the course of his judgment in Hyde v Hyde & Woodmansee ((1866), LR 1
P & D 130, 35 LJP & M 57, 14 LT 188, 12 Jur NS 414, 14 WR 517, 11 Digest (Repl) 455, 906), says:
But I expressed at the hearing a strong doubt whether the union of man and woman as practised
and adopted among the Mormons was really a marriage in the sense understood in this, the
matrimonial court of England and whether persons so united could be considered husband and wife
in the sense in which these words must be interpreted in the Divorce Act. Further reflection has
confirmed this doubt, and has satisfied me that this court cannot properly exercise any jurisdiction over
such unions.
If English law regards such a polygamous marriage as the one now before me as no marriage, it
might seem at first sight that there could be no objection to the court saying so, for the decree would
be declaratory. This would mean, however, that a successful petitioner would have the right to apply
for maintenance and for custody, and this would also mean that if the present petitioner were the
second, third or fourth wife of the husband the court would still have to entertain her petition, for under
Muslim law the first wife is no more the wife than the remaining three.
Enough has been said to make it clear that this appeal must succeed unless the effect of the Muslim
Marriage and Divorce Registration Ordinance is such as to alter the law in the sense contended for by the
respondent. We are unable to accept the submissions of counsel for the respondent, to which reference has
already been made. We are of opinion that such an alteration can be effected only by express enactment or
necessary implication. In this connection reference may be made to the case of a marriage contracted
under the provisions of the Hindu Marriage Ordinance, s 10, which specifically confers upon the parties
thereto a status similar to that of parties marrying under the provisions of the Marriage Ordinance. That
section is in the following terms:

10. It shall be lawful for any Marriage Officer without previous notice of the intended marriage
being given and without any other formality required by the Marriage Ordinance to solemnise a
marriage between persons belonging to and professing the Hindu faith or religion; and such marriage
shall, subject to the provisions of this Ordinance, be as valid as if it had been solemnised in conformity
with the provisions of the said Marriage Ordinances.
No corresponding section is to be found in the Muslim Marriage and Divorce Registration Ordinance.
It is important to observe that whilst, as from the respective dates of commencement of the Hindu
Marriage Ordinance and the Muslim Marriage and Divorce Registration Ordinance, ss 13, 14 and 16-23
inclusive of the Immigration (Indian) Ordinance, Cap 20, No 1 [T], have virtually ceased to apply to Hindu
and Muslim immigrants, s 15 of the said Ordinance, which applies to marriages between Christian
immigrants, continues in full force and effect. The terms of this section are as follows:
15 (a) An immigrant who, at the time of his arrival in the Colony, professes Christianity shall,
immediately upon such arrival, and
(b) an immigrant who, at any time after his arrival in the Colony, embraces Christianity shall,
immediately upon such change of faith, 152as to capacity or incapacity to contract marriage, and the
conditions subject to which and the manner in which marriage may be contracted, be subject to the
general law of the Colony.
Abandonment of Christianity shall not affect the operation of this section.
In our view the effect of this section is to establish a clear distinction between Muslim and Hindu
marriages on the one hand and monogamous or Christian marriages on the other hand, the latter being
the only kind of marriages that are, in the absence of any statutory provision, eg s 10 of the Hindu Marriage
Ordinance, subject to the general law of the Colony.
For the foregoing reasons we hold that the magistrate had no jurisdiction to make an order for
maintenance in this case, and the appeal is accordingly allowed, without costs.
Appeal allowed.

(1959) 1 WIR 153

David v Stollmeyer Ltd

SUPREME COURT OF TRINIDAD AND TOBAGOAPPELLATE JURISDICTION
GOMES CJ AND PHILLIPS J
16, 17 DECEMBER 1958, 7 JANUARY 1959

Easement Water Premises demised for 99 years Reservoir on lands retained by lessor Premises
supplied with water from reservoir prior to and at time of demise Reversion in demised premises and lands
on which reservoir stood conveyed by deed Right to water.
By a lease made in April 1946, the lessor, S, demised to the lessee for a term of 99 years premises
consisting of a parcel of land with a dwelling-house thereon. At the time of the demise water was supplied to
the premises by means of a pipe which conducted water thereto by natural gravitation from a reservoir
situate on other lands retained by S, who operated and maintained the reservoir for many years prior to the
lease.
In February 1951, the reversion on the parcel of land demised to the lessee together with the other lands
retained by S were conveyed by deed to the plaintiff.
The plaintiff brought an action in the Petty Civil Court, Port of Spain, claiming against the defendant the sum
of $74.94 for water supplied to the defendant at the demised premises.
The lease contained the usual covenants but no reference whatever to the supply of water to the demised
premises.
Held: Under the lease of 1946, the defendant acquired a right to the normal supply of water that flowed
through the pipes from the reservoir at the time of the execution of the lease, and the plaintiffs who were
successors in title to S were accordingly not entitled to maintain the action against the defendant.

Watts v Kelson (Watts v Kelson (1871), 6 Ch App 166, 40 LJCh 126, 24 LT 209, 35 JP 422, 19 WR 338, LJJ,
19 Digest 45, 250) and Key v Neath Rural District Council (Key v Neath Rural District Council (1906), 95 LT
771, 71 JP 57, 4 LGR 1174, CA, 19 Digest 152, 1049) followed.
Appeal allowed.
Cases referred to
Key v Neath Rural District Council (1906), 95 LT 771, 71 JP 57, 4 LGR 1174, CA, 19 Digest 152, 1049
Watts v Kelson (1871), 6 Ch App 166, 40 LJCh 126, 24 LT 209, 35 JP 422, 19 WR 338, LJJ, 19 Digest 45,
250

153
Wright v Macadam [1949] 2 KB 744, [1949] 2 All ER 565, 93 Sol Jo 649, CA, 2nd Digest Supp
Regis Property Co, Ltd v Redman [1956] 2 All ER 335, [1956] 2 QB 612, 100 Sol Jo 417, CA, 3rd Digest
Supp
Goldberg v Edwards [1950] Ch 247, 94 Sol Jo 128, CA, 2nd Digest Supp
Todrick v Western National Omnibus Co, Ltd [1934] Ch 561, 103 LJCh 224, 151 LT 163, 78 Sol Jo 318, CA,
Digest Supp
Re Salvins Indenture, Pitt v Durham County Water Board [1938] 2 All ER 498, 82 Sol Jo 395, 36 LGR 388,
Digest Supp
Appeal
Appeal against a decision in the Port of Spain Petty Civil Court.
T Hosein (instructed by T M Kelshall & Co) for the appellant
E H Wells (instructed by Eric J McCarthy) for the respondent
Cur adv vult.
GOMES CJ delivered the judgment of the court: In an action in the port of Spain Petty Civil Court the plaintiff
company recovered against the defendant the sum of $74.94 being an amount alleged to be due and owing
by the defendant for a supply of water between 6 January 1953, and 3 October 1956. Before the hearing of
the action the defendant filed a special defence, one of the pleas of which was that the defendant is and
was at all material times entitled in the circumstances of the case to a water supply free of extra charge by
reason of the provisions of a Deed of Lease dated the 2nd day of April 1946, registered as No 3440 of
1946.
At the hearing of the action certain legal submissions were made by counsel for the defendant but the
judge held that they did not arise because he considered the claim of the plaintiff was based on an
agreement independent of the lease.
The facts relating to the case may be stated briefly as follows: On 2 April 1946, one C C Stollmeyer
demised a parcel of land and a house at Santa Cruz to the defendant, a solicitor, for a term of 99 years, with
the usual covenants, but without any reference in the lease to a supply of water. At the time of the execution
of the lease water was supplied to the premises by a pipe through which it was conveyed by natural
gravitation from a reservoir situate on other premises which were retained by C C Stollmeyer. The source of
the water that flowed into the reservoir was a natural spring. That reservoir and connecting pipe or pipes are
hereinafter referred to as the water works. The water works had been operated by Mr Stollmeyer for many
years before the lease, and after the execution of the lease the defendant continued to receive the supply of
water. The water coming from the reservoir was the only supply of water available to the defendant and
other persons in the area. At the commencement of the lease there was no meter attached to the water
works to determine the quantity that was used by the defendant but one was installed some years later.
On 23 February 1951, the reversion in the parcel of land demised to the defendant, together with the
other part of the estate retained by C C Stollmeyer, was conveyed by deed to the plaintiff company,
Stollmeyer, Ltd
At the hearing of this appeal counsel for the appellant submitted that the company was not entitled to
maintain the action as there was no evidence that it owned the water works and that the appellant was
entitled by implied grant to the supply of water as it existed at the date of the lease, and without charge.
As to the first point, we consider that the conveyance by CC Stollmeyer to the company transferred the
land retained by Stollmeyer and everything on it, including the water works, and therefore the company was
entitled to bring the action.
In support of his submission on the second question, counsel for the appellant 154 referred to and relied
upon the provisions of s 16 (2) of the Conveyancing and Law of Property Ordinance, Cap 27, No 12 [T], and
also the cases of Key v Neath Rural District Council ((1906), 95 LT 771, 71 JP 57, 4 LGR 1174, CA, 19

Digest 152, 1049) and Watts v Kelson ((1871), 6 Ch App 166, 40 LJCh 126, 24 LT 209, 35 JP 422, 19 WR
338, LJJ, 19 Digest 45, 250) and on certain passages in 12 Halsburys laws, 3rd Edn at p 621, para 1351,
and 33 Halsburys Laws, 2nd Edn at p 593.
Counsel for the appellant argued that the appellants right to a supply of water was an easement or
quasi-easement in the proper sense of the term and not a personal right; that the facts show all the
requirements pertaining to an easement; that the right enjoyed by the appellant is capable of formulation and
conveyance; and that, if the lessor wished to protect himself against the operation of the provisions of s 16
of the Ordinance, he could and ought to have done so by a term in the lease. He concluded by maintaining
that if the court did not consider the right in question to be an easement or quasi-easement proper, then the
appellant would still be entitled to succeed if the court found that the right was one which is known or
recognised by law, and that even apart from s 16 (2) of the Ordinance such a right would have passed at
common law.
In reply, counsel for the respondent company argued that the appellant was entitled to the supply of
water but that his entitlement arose solely by an inchoate contractual arrangement at the time of the
execution of the lease which crystallised after the lease; that the right that arose is not an easement or a
quasi-easement proper or in the nature of an easement or quasi-easement; and that in this case the
agreement between the parties created a personal right which is au dehors the provisions of s 16 of the
Ordinance. In support of those submissions counsel referred to the cases of Wright v Macadam ([1949] 2
KB 744, [1949] 2 All ER 565, 93 Sol Jo 649, CA, 2nd Digest Supp), Regis Property Co, Ltd v Redman
([1956] 2 All ER 335, [1956] 2 QB 612, 100 Sol Jo 417, CA, 3rd Digest Supp) and Goldberg v Edwards
([1950] Ch 247, 94 Sol Jo 128, CA, 2nd Digest Supp).
The relevant provisions of s 16 of the Ordinance are as follows:
(2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include
and shall by virtue of this Ordinance operate to convey, with the land, houses or other buildings, all
watercourses, liberties, privileges, easements, rights, and advantages whatsoever appertaining or
reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part
thereof, or at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part
or parcel of or appurtenant to, the land, houses, or other buildings conveyed or any of them, or any
part thereof.
(3) This section applies only if and as far as a contrary intention is not expressed in the
conveyance, and has effect subject to the terms of the conveyance and to the provisions therein
contained.
We consider that the submissions made can be determined by the answer to a single question: did the
right in question arise from personal contract or because it is a right known to the law? If it arose from
personal contract then it must be determined by the terms of the contract, if in fact there was any contract: if
it is a right known to the law then it is capable of formulation and will pass by the force of the provisions of s
16 of the Ordinance.
We agree with counsel for the appellant that the evidence shows that the water works had been in
existence and in operation for many years before the execution of the lease and that water was being
supplied to the premises both at the time of and after the execution of the lease. In such circumstances the
authorities, and notably the cases of Watts v Kelson ((1871), 6 Ch App 166, 40 LJCh 126, 24 LT 209, 35 JP
422, 19 WR 338, LJJ, 19 Digest 45, 250) and Key v Neath Rural District Council ((1906), 95 LT 771, 71 JP
57, 4 LGR 1174, CA, 19 Digest 152, 1049) (both of which deal with the question of water supply) show that
where appropriate words are contained in the conveyance, that is to say, words which are the substantial
equivalent of the provisions of s 16 (2) of the Ordinance, those words will create and pass a right to the
water supply.
In Watts v Kelson ((1871), 6 Ch App 166, 40 LJCh 126, 24 LT 209, 35 JP 422, 19 WR 338, LJJ, 19
Digest 45, 250) Sir George Mellish LJ, in delivering the judgment of the court, said:

155
In the old case of Nicholas v Chamberlain it was held by all the court, upon demurrer, that if one
erects a house, and builds a conduit thereto in another part of his land, and conveys water by pipes to
the house, and afterwards sells the house with the appurtenances, excepting the land, or sells the land
to another, reserving to himself the house, the conduits and pipes pass with the house, because they
are necessary and quasi-appendant thereto. This case has always been cited with approval, and is
identical, not only in principle, but in its actual facts, with the case now before us.
And later:

We think that the watercourse was necessary for the use of the tenement conveyed. It was, at the
time of the conveyance, the existing mode by which the premises conveyed were supplied with water;
and we think it is no answer that, if this supply was cut off, possibly some other supply might have
been obtained. We think it is proved on the evidence that no other supply of water equally convenient
or equally pure could have been obtained. We are also of opinion, having regard to the general words
in the conveyance, that the language of the conveyance was sufficient to pass the right to the
watercourse, even if it was not necessary, but only convenient for the use of the premises.
The case of Watts v Kelson ((1871), 6 Ch App 166, 40 LJCh 126, 24 LT 209, 35 JP 422, 19 WR 338,
LJJ, 19 Digest 45, 250) was approved and followed in Keys case (Key v Neath Rural District Council
(1906), 95 LT 771, 71 JP 57, 4 LGR 1174, CA, 19 Digest 152, 1049), in which the facts were almost identical
with the facts of this case. In the latter case Lord Alverstone CJ said:
I refer on that point to Watts v Kelson ((1871), 6 Ch App 166, 40 LJCh 126, 24 LT 209, 35 JP 422,
19 WR 338, LJJ, 19 Digest 45, 250). In that case the pipe had been laid from one property of the
predecessor of the defendant to another. It had only been in existence three years. The property
which received the water from the upper property was then sold with a conveyance which contained
words no wider than the present.... A subsequent purchaser of the upper farm some eight years
afterwards cut off the water. It was held that he was not entitled to do so, and the Court of Appeal, in a
judgment which has been considered as a binding authority ever since, held that a purchaser of the
lower farm got a right to the water flowing through the pipe. . . . I hold the pipe which has been in
existence for eighteen years and used for this house and for drawing its water was an easement or
watercourse which passed under those words of grant, and that, that being so, the mere fact that his
title to get the water was defective would not justify the lessor in cutting it off.
It will be observed that Lord Alverstone held that the pipe which was in existence and was used for
drawing water for the house was an easement or watercourse which passed under the words of the grant,
and the learned author of Jenks English Civil Law, 4th Edn, Vol 2, at p 577, para 1173, enumerates one of
the five easements of water recognised by English Law as being the right to have water flow in a defined
channel or pipe on or through a servient tenement. We advert to this because one of the reasons
advanced by counsel for the respondent for maintaining that the right in this case is not an easement or
quasi-easement is because there is no contiguous servient tenement. We do not consider that it is
necessary to deal with that point but that, if it does arise, it is disposed of by the cases of Todrick v Western
National Omnibus Co, Ltd ([1934] Ch 561, 103 LJCh 224, 151 LT 163, 78 Sol Jo 318, CA, Digest Supp) and
Re Salvins Indenture, Pitt v Durham County Water Board ([1938] 2 All ER 498, 82 Sol Jo 395, 36 LGR 388,
Digest Supp), which deal with the question of contiguity. Nor do we consider that the cases cited by counsel
for the respondent afford much assistance in determining the question raised in this appeal.
On the authorities cited by counsel for the appellant we have no doubt that at the time of the execution
of the lease the lessee acquired a right to the normal supply of water that flowed at that time and that it was
a right which is known to the law, that is to say, a right which was and is capable of formulation and 156
therefore capable of being granted by lease, or conveyance such as to pass, in the absence of any
stipulation in the lease, under the provisions of s 16 (2) of the Ordinance.
For these reasons the judgment of the Petty Civil Court is set aside and the appeal is allowed with costs
to be taxed.
Appeal allowed.

(1959) 1 WIR 157

R v Emmanuel Baptiste
COURT OF CRIMINAL APPEAL OF TRINIDAD AND TOBAGO
GOMES CJ, BLAGDEN AND PETETKIN JJ
28 APRIL, 2 MAY 1959

Criminal Law Murder Expression of opinion by judge in summing-up as to credibility of witness.

Appellant was a member of a group of young men who clashed with a rival group and pursued some of them
into a school. Three witnesses testified to seeing appellant stab one Sylvester, a member of the rival group,
in the back, in a classroom. Appellant subsequently made a voluntary statement to the police which was put

in evidence at the trial in which he admitted being one of those who had cut at Sylvester with a knife. In the
course of his summing-up the trial judge specially commended the evidence of Owen Barrow, one of the
three eye witnesses, as being genuine and truthful. There were discrepancies between Barrows evidence
and that of the other witnesses.
Appellant elected not to give evidence nor make a statement and called no witnesses. He was convicted of
the murder of Sylvester and appealed on the grounds that the trial judges commendation of Barrows
evidence was tantamount to an expression of his belief in the appellants guilt, and further that Barrows
evidence should not have been commended because of the discrepancies between it and that of the other
witnesses.
Held: (i) It is where there are discrepancies in the evidence that a jury would look for assistance from the
trial judge.
(ii) The trial judge had quite legitimately indicated his opinion as to the credibility of the witness Barrow
giving his reasons therefor and at the same time reminding the jury (as he had previously directed them) that
it was a matter entirely for them as they were the judges of the facts.
(iii) The trial judges summing-up was fair and impartial in a case where an abundance of evidence,
including, in particular, the damaging admission made in the appellants statement to the police, pointed
inescapably to the appellants guilt.
R v ODonnell (3) followed.
Appeal dismissed.
Cases referred to
R v Frampton (1917), 12 Cr App Rep 202, CCA, 14 Digest (Repl) 331, 3208
R v Anderson 29 Cox 102
R v ODonnell (1917), 12 Cr App Rep 219, CCA, 14 Digest (Repl) 331, 3209

157
Appeal
Appeal by Emmanuel Baptiste against conviction for murder at the Criminal Sessions, Port of Spain. The
facts of the case are sufficiently set out in the judgment of the court.
Toolsie (instructed by Crown Solicitor) for the appellant
Rienzi (Acting Director of Public Prosecutions) for the Crown
GOMES CJ delivered the judgment of the court: The appellant, Emmanuel Baptiste, was, on 13 March
1959, convicted and sentenced to death for the murder of McDonald Sylvester on 10 June 1958. He
appealed against his conviction on four grounds, but at the hearing before this court, his counsel, who also
represented him at the trial, abandoned three of those grounds. The remaining ground is as follows :
The Learned Trial Judge by commending the evidence of Owen Barrow, indicated to the Jury his
belief in the guilt of the Accused in that :
(a) he referred to the evidence of Barrow as being independent;
(b) he indicated that his evidence ought to be accepted even if the evidence of the other witnesses
be rejected as accomplices.
The facts, stated briefly and in so far as they are necessary to deal with the ground of appeal, are as
follows:
The rival groups of young men encountered each other at the corner of Dundonald and New Streets,
Port of Spain, at about 2.30 pm on 10 June 1958. One group, which included the appellant Baptiste, started
to pursue the other, of which the deceased Sylvester was a member. Both groups eventually arrived in the
vicinity of the Tranquillity School where some of the pursued group, including the deceased, took refuge in
the school. At that stage the appellant was seen to run into the school, with at least one other boy,
Alexander Curvan, in pursuit of the deceased and another boy, David Wickham. Witnesses testified to the
fact that the appellant was observed carrying a long knife in his right hand. As he entered the room where
the deceased and Wickham had taken refuge he shouted, You mothers arse you dead today.

The appellant then rushed at Wickham who was able to avoid him by pushing over a blackboard. He
then ran towards the deceased, who was unarmed, and proceeded to stab at him with his knife.
There was ample evidence by three eye witnesses, of whom Owen Barrow was one, that a number of
those stabs directed at the body of the deceased injured him, one of them fatally. In addition to the evidence
of the eye witnesses, the appellant made a statement to the police, which was in no way challenged at the
trial when tendered in evidence, in which he stated, inter alia :
Myself, Curvan and Romeo Maida we went behind the boy in the room the school room, the boy
who got stabbed and another boy were in the room, we all fired cuts at the boy, I had a knife which I
fired cuts at him, Maida and Curvan also had knives and also fired cuts at the boy with the knives.
The passage in the summing-up to which objection was taken is as follows :
Gentlemen, it is not often that I do so, but I think in this case it is proper that I should commend the
evidence of this young boy, Barrow, to you. It is true that questions of fact are for you but I am entitled
to express an opinion which you may or may not accept just as you think fit. To me, at least, there
seems to be a genuineness, a ring of truth, about this boys evidence. It is true it doesnt tally with
some of the other evidence, but, gentlemen, he is an independent, a disinterested party and as such
he must be given some attention. Whether you agree with me or not on that point is a matter entirely
for you because you are judges of the facts.
In arguing the ground of appeal, counsel for the appellant submitted that the effect of that passage was
tantamount to a positive expression by the trial judge 158 of his belief in the guilt of the accused, for the
reason that, if Barrows evidence was believed, it pointed inescapably to the conclusion that the appellant
was guilty. In support of this submission he cited the cases of R v Frampton ((1917), 12 Cr App Rep 202,
CCA, 14 Digest (Repl) 331, 3208) and R v Anderson, 29 Cox 102), and contended that, where a summingup contains a positive expression of belief in the guilt of an accused, a conviction which follows should not
stand.
The general rule in regard to expressions of opinion as to fact by a trial judge is set out in the case of R
v ODonnell ((1917), 12 Cr App Rep 219, CCA, 14 Digest (Repl) 331, 3209) ((1917), 12 Cr Rep at p 221) in
the following terms:
In regard to the second point, it is sufficient to say, as this Court has said on many occasions, that
a judge, when directing a jury, is clearly entitled to express his opinion on the facts of the case,
provided that he leaves the issues of fact to the jury to determine. A judge obviously is not justified in
directing a jury, or using in the course of his summing-up such language as leads them to think that he
is directing them, that they must find the facts in the way which he indicates. But he may express a
view that the facts ought to be dealt with in a particular way, or ought not to be accepted by the jury at
all. He is entitled to tell the jury that the prisoners story is a remarkable one, or that it differs from
accounts which he has given of the same matter on other occasions. No doubt the judge here did
express himself strongly on the case, but he left the issues of fact to the jury for their decision, and
therefore this point also fails.
In our view, Andersons case (R v Anderson, 29 Cox 102) is not of much assistance, but in Framptons
case (R v Frampton (1917), 12 Cr App Rep 202, CCA, 14 Digest (Repl) 331, 3208) the passages in the
summing-up that were objected to were of a very different character to the passage complained of here.
There the judge used the strongest language possible in condemning the evidence of a witness for the
defence, in relation to which he directed the jury that it was open to them to find a verdict of not guilty if they
could bring it to their consciences to do so. This was a very clear expression of opinion of the accuseds
guilt and that the jury would be doing violence to their consciences if they found otherwise. Such strong
words amounted to a condemnation of the defence, which was an alibi. The passage under review in this
case is on an entirely different plane. The view we take of it is that the trial judge, in endeavouring to assist
the jury by an evaluation of the evidence, quite legitimately indicated his own opinion as to the credibility of
one of the eye witnesses, giving his reasons therefor but at the same time clearly reminding the jury (as he
had previously directed them) that whether they agreed with him or not was a matter entirely for them, as
they were the judges of the facts.
Linked with that submission, counsel took the further point that the judge was wrong in commending
Barrows evidence because of discrepancies between it and the evidence of other eye witnesses. We do
not consider that there is any substance in this point, as there would be no object in comment where the
evidence of all the witnesses was in agreement. Further, it is clear that the judge was well aware of the
discrepancies for, in making his comment, he pointed out to the jury that Barrows evidence did not tally with

some of the other evidence. Indeed, it is where discrepancies in the evidence appear that a jury would look
for assistance from a judge.
In our view, the judges summing-up was fair and impartial in a case where an abundance of evidence,
including, in particular, the damaging admission made in the appellants statement to the police, pointed
inescapably to the appellants guilt.
For these reasons the appeal is dismissed.
Appeal dismissed.

159
(1959) 1 WIR 160

Heeralal v Alves
SUPREME COURT OF TRINIDAD AND TOBAGOAPPELLATE JURISDICTION
GOMES CJ, BLAGDEN AND PHILLIPS JJ
25 FEBRUARY, 20 MARCH 1959

Summary Courts Mode of making complaint Effect of non-appearance of complainant before Justice
issuing summons on validity of complaint Jurisdiction of trial magistrate to hear complaint Summary
Courts Ordinance, Cap 3, No 4 [T], s 33 (1) Ibid, s 36 (3).
Road Traffic Exceeding the speed limit Validity of complaint Motor Vehicles and Road Traffic
Ordinance, Cap 16, No 4 [T], s 44 (as enacted by Motor Vehicles and Road Traffic (Amendment) Ordinance,
No 47 of 1956 [T], s 3).
Section 33 (1) of the Summary Courts Ordinance, Cap 3, No 4 [T], enacts that : Every proceeding in the
Court for the obtaining of an order against any person in respect of a summary offence shall be instituted by
a complaint made before a Magistrate or Justice.
By s 36 (3): Every such complaint may be made by the complainant in person, or by his counsel or solicitor,
or by any person, authorised in writing in that behalf.
The respondent made out and signed a complaint against the appellant for exceeding the speed limit. The
complaint was brought before a justice by another officer who, however, had not been authorised in writing
in that behalf. A summons was issued to the appellant who duly appeared, and the respondent appeared
before the magistrate to prosecute the complaint and give evidence. The appellant was convicted and
appealed on the ground that the magistrate had exceeded his jurisdiction in entertaining the complaint, since
non-compliance with the provisions of s 36 (3) as read with s 33 (1) of the Summary Courts Ordinance, Cap
3, No 4 [T], had the effect of rendering the document purporting to be a complaint a mere nullity.
Held: (i) Sections 33 and 36 of the Summary Courts Ordinance, Cap 3, No 4 [T], were not sections which
conferred jurisdiction on magistrates but related to procedural matters.
(ii) Although the complaint could not be said to have been made before the justice because the complainant
did not physically appear before him, it was subsequently made before the magistrate when the complainant
physically appeared at the trial before him.
Appeal dismissed.
No cases referred to
Appeal
Appeal by Seenath Heeralal against conviction by a magistrate for exceeding the speed limit. The facts and
arguments are fully set out in the judgment of the court.
J E Borneo (instructed by Crown Solicitor) for the appellant
A C Rienzi (Acting Director of Public Prosecutions) for the respondent

Cur adv vult.

GOMES CJ delivered the judgment of the court: In this case the appellant was convicted of the offence
commonly known as speeding. He has appealed on the ground that the magistrate had no jurisdiction or
exceeded his jurisdiction in entertaining and hearing the complaint that was put before him as it was merely
a document which purported to be a complaint, and was, therefore, a nullity.
The facts relating to the complaint are that it was made out by the complainant, a corporal of police, and
signed by him as complainant. It was then, taken by a sergeant of police and placed before or handed to
the clerk of the

160
magistrates court, a justice of the peace, who also signed it in his latter capacity. The only ground on
which counsel for the appellant based his submission that the document is a nullity is that by the combined
operation of s 33 (1) and s 36 (3) of the Summary Courts Ordinance, Cap 3, No 4 [T], it is a condition
precedent to the validity of any complaint that may be made before a justice of the peace that the
complainant himself must appear before the justice.
We consider that a proper determination of the question raised on this appeal would be arrived at by
examining the situation that confronted the magistrate when objection was taken to the validity of the
document that was before him. He had before him a document which was in the following terms:
Complainant of Mobile Section, San Fernando comes before me the undersigned JP for the said
Magisterial District, and complains against the defendant Seenath Heeralal, of Siparia Old Road,
Fyzabad, 2nd Junction for that the said defendant at South Trunk Road, La Romain on Saturday 13th
July 1957, did drive a certain motor vehicle to wit: motor lorry T 3921 outside a built up area at a speed
to wit: 45 mph greater than the speed specified as the maximum speed in relation to a vehicle of that
class or description.
Contrary to Section 44 (1) (A) of the Motor Vehicles & Road Traffic Ordinance Cap 16 No 3 as
amended by section 3 of the Motor Vehicles Road Traffic (Amendment) Ordinance of 1956.
and the said Complainant prays that the said Defendant may be summoned to answer the said
complaint.
/s/ Augustine Alves Corporal 3158
Complainant.
Before me this 24th day of July 1957 at San Fernando Magistrates Court.
/s/ G T Collier.
J P.
The document being before the magistrate, the person whose signature appeared on it as the
complainant was called; he was present, that is to say, he was before the magistrate: he entered the
witness-box and gave his evidence. In cross-examination it was elicited that when he instituted or
commenced the proceeding against the respondent, that is to say, when the complaint against the appellant
which bore his signature was placed before the magistrates clerk or justice of the peace, he was not
physically present, but was represented in person by another person superior in rank in the police force,
who, however, was not authorised in writing in that behalf as required by s 36 (3).
It is important to bear in mind the true nature of the objection taken on appeal; that is, that the
magistrate exceeded his jurisdiction in entering upon the hearing of the matter, and not merely that the
complaint was bad because it did not comply with statutory requirements. We say exceeded his
jurisdiction and not had no jurisdiction because it is clear that the complaint (if otherwise unobjectionable)
related to a matter over which the magistrate had jurisdiction.
The provisions of the two subsections mentioned above are as follows:
33 (1) Every proceeding in the Court for the obtaining of an order against any person in respect of
a summary offence shall be instituted by a complaint made before a Magistrate or Justice.
And:
36. (3) Every such complaint may be made by the complainant in person, or by his counsel or
solicitor, or by any person authorised in writing in that behalf.
During argument on appeal the provisions of ss 33 and 36 were examined 161 and analysed in great
detail, but what remained unanswered by counsel for the appellant was a question that was posed by a
member of the court in language which was substantially as follows:

Let us suppose that the complaint in question cannot be said to have been made before the justice
because the complainant did not physically appear before him, can it be maintained successfully that it
was not made subsequently before the magistrate when both the complaint and the person who made
it or wished to make it were present before the magistrate?
We fail to see how the magistrate could have refused to take cognisance of the document and of the
presence of the potential complainant that were before him. Counsel for the appellant argued that what was
put before the magistrate was merely a piece of paper. We do not agree; for what was before the magistrate
was a document containing in type or print and manuscript all the requirements of a valid complaint. While it
is true that the signature of the magistrates clerk or justice purported to authenticate something that was in
a literal sense untrue, that is, that the complainant had appeared before him, that circumstance could not
have the effect of converting the document into a mere piece of paper when it was put before the magistrate
in the presence of the complainant. How could the magistrate have said to the complainant:
You endeavoured to institute this complaint by causing it to be put before a justice of the peace
(my clerk) instead of coming before me in the first instance and you failed, now how can you come
before me with it?
The fact remains that the complainant had caused his complaint to be put before the magistrate and, if
any further authentication (beyond his signature) was required, his presence in court provided it. Sections
33 and 36 are not the sections which confer jurisdiction on the magistrate but relate to procedural matters.
There are two courses open to a person who wishes to make a complaint: he may make it either before
a justice or a magistrate. Even if it is conceded that there was a failure of compliance with any requirement
when the complaint was before the justice of the peace, there was certainly no non-compliance with any
requirement when the complaint and complainant were before the magistrate.
The magistrate, in our view, was bound to entertain and hear the complaint.
For these reasons the appeal is dismissed with costs to be taxed.
Appeal dismissed.

162
(1959) 1 WIR 163

Jack v Samaroo
SUPREME COURT OF TRINIDAD AND TOBAGOAPPELLATE JURISDICTION
GOMES CJ AND BLAGDEN J
17 FEBRUARY, 3, 20 MARCH 1959

Road Traffic Exceeding the speed limit Built-up area Special speed limit Authority of Trinidad
Transport Board to impose a special speed limit and to declare an area to be a built-up area Motor
Vehicles and Road Traffic Ordinance, Cap 16, No 3 [T], s 44 (1) (b), (2) and (8), as enacted by the Motor
Vehicles and Road Traffic (Amendment) Ordinance (No 47 of 1956) [T], s 3 Speed Limits (Built-up Areas)
Order, 1957 [T].
Section 44 (1) (b) and (2) of the Motor Vehicles and Road Traffic Ordinance, Cap 16, No 3 [T], as enacted by
s 3 of the Motor Vehicles and Road Traffic (Amendment) Ordinance (No 47 of 1956) [T] enact that:
44 (1) Subject as hereinafter provided, it shall not be lawful for any person to drive a motor vehicle of any
class or description on any road
(b) within a built-up area at a speed greater than the speed specified in the Second Schedule hereto as the
maximum speed in relation to a vehicle of that class or description.
(2) It shall be lawful for the Board by order to impose a special speed limit with respect to any road, whether
outside or within a built-up area, or any part of such road, in relation to motor vehicles generally or in relation
to any class or description of motor vehicle.
Built-up area and special speed limit are defined in s 44 (8) as follows:

built-up area means the City of Port of Spain, the Borough of San Fernando, the Borough of Arima, and
any other area or road or portion thereof declared by order of the Board to be a built-up area for the
purposes of this section;
special speed limit means, in relation to the driving of any motor vehicle or a motor vehicle of any specified
class or description on a road, a speed limit specifying a speed less than the speed which would be
applicable in respect of that road and that class or description of motor vehicle under paragraph (a) or (b) of
subsection (1) of this section, as the case may be, and which is imposed under the provisions of subsection
(2) or (3) of this section.
By the Speed Limits (Built-up Areas) Order, 1957, the Trinidad Transport Board purported to declare certain
areas and roads and portions thereof specified in the Schedule to the Order to be built-up areas for the
purposes of Section 44 of the said Ordinance.
The respondent was charged in a complaint by the appellant with exceeding the speed limit in one of the
areas so declared to be a built-up area. The magistrate dismissed the complaint on the grounds that the
Board had no power to declare any particular area to be a built-up area and that consequently the Special
Limits (Built-up Areas) Order, 1957, was invalid. The complainant appealed.
Held: (i) It is a rule of construction that a power delegated must be conferred by clear and express
language. The substantive power which was delegated to the Board here was that which was given by s 44
(2) of the Motor Vehicles and Road Traffic Ordinance [T] (as enacted by s 3 of the Motor Vehicles and Road
Traffic (Amendment) Ordinance (No 47 of 1956) [T]), that is to say, a power by order to impose a special
speed limit with respect to any road whether outside or within a built-up area, or any part of such road.
(ii) The power to declare areas over which that substantive power was to be exercised was merely ancillary
or incidental to the exercise of that substantive power; and its conferment by implication from the definition
of built-up area 163in s 44 (8) did not offend against the rule in regard to delegated power, and
consequently the Order of the Board was not invalid.
Dictum of Brett LJ, in Re Dudley Corpn (1) ((1881), 8 QBD at p 93), applied.
Appeal allowed.
Case referred to
Re Dudley Corpn (1881), 8 QBD 86, 51 LJQB 121, sub nom Dudley Corpn v Dudleys (Earl) Settled Estates
Trustees, 45 LT 733, 46 JP 340, CA, 42 Digest 682, 941
Appeal
Appeal by P C Samuel Jack against the dismissal by the magistrate of the County of Caroni of a charge
brought against Polo Samaroo of exceeding the speed limit in a built-up area. The facts and arguments
appear in the judgment.
Rienzi (instructed by Crown Solicitor) for the appellant
Indar Persad for the respondent
GOMES CJ. delivered the judgment of the court: In this case the appellant was acquitted of the offence
known as speeding. For the purpose of this appeal, the relevant provisions relating to the offence are s 44
(1) (b), (2) and (8) of the Motor Vehicles and Road Traffic Ordinance [T], as enacted by s 3 of the Motor
Vehicles and Road Traffic (Amendment) Ordinance (No 47 of 1956) [T], which are as follows:
44. (1) Subject as hereinafter provided, it shall not be lawful for any person to drive a motor
vehicle of any class or description on any road
(b) within a built-up area at a speed greater than the speed specified in the Second Schedule
hereto as the maximum speed in relation to a vehicle of that class or description;
(2) It shall be lawful for the Board by order to impose a special speed limit with respect to any road,
whether outside or within a built-up area, or any part of such road, in relation to motor vehicles
generally or in relation to any class or description of motor vehicle.
(8) In this section
built-up area means the City of Port of Spain, the Borough of San Fernando, the Borough of
Arima, and any other area or road or portion thereof declared by order of the Board to be a built-up
area for the purposes of this section;

special speed limit means, in relation to the driving of any motor vehicle or a motor vehicle of any
specified class or description on a road a speed limit specifying a speed less than the speed which
would be applicable in respect of that road and that class or description of motor vehicle under
paragraph (a) or (b) of subsection (1) of this section, as the case may be, and which is imposed under
the provisions of subsection (2) or (3) of this section.
Pursuant to the provisions of sub-s (8) of that section the Trinidad Transport Board by Order declared,
or purported to declare, certain areas to be built-up areas. The Order under which it acted is the Speed
Limits (Built-up Areas) Order, 1957 (Government Notice No 24). The offence that the respondent is alleged
to have committed was in relation to the speed at which he drove within one of the built-up areas described
by that Order.
At the hearing of this appeal counsel for the respondent submitted that there could be no conviction, as
the Board had no power to declare any area to be a built-up area; that is to say, that sub-s (8), being only an
interpretation section, could not confer such a power on the Board, because a power that is delegated must
be conferred by clear and express language. Counsel for the Crown replied that the power to declare builtup areas must be inferred from the language of the subsection. It seems clear that the language of the
subsection does not 164 confer such a power expressly, but by implication: the question to be determined
therefore, is whether that implied power offends, in a vital way, against the rule that a power delegated must
be conferred by clear and express language.
In our view the question should be approached by considering in the first instance what precisely is the
power which the Legislature intended to delegate and did in fact delegate.
The power which was delegated to the Board is that which is given in s 44 (2), that is to say, the power
to impose a special speed limit with respect to any road whether outside or within a built-up area, or any
part of such road. In order to exercise that power within a built-up area it was obviously necessary for the
Legislature or some other authority to declare which areas should be built-up areas; unless and until that
was done it would not be possible to charge a driver for driving at an excessive speed within a built-up area.
The Legislature, realising this, itself declared in sub-s (8) certain areas to be built-up areas. After
mentioning three specific areas, it went on to say and any other area or road or portion thereof declared by
Order of the Board to be a built-up area for the purposes of this section. This language undoubtedly
savours of delegated authority. It must be remembered, however, that the real power that is delegated to
the Board is the power to impose a special speed limit and that the power to declare the areas over which
that power was to be exercised was merely ancillary or incidental to the exercise of the substantive power:
for example, the power to declare what areas shall be built-up areas simpliciter would not have given effect
to the intention of the Legislature.
In examining this question the rule in regard to the construction of enabling laws must be borne in mind.
The rule, as stated by Brett LJ, in Re Dudley Corporation ((1881), 8 QBD 86, 51 LJQB 121, sub nom Dudley
Corpn v Dudleys (Earl) Settled Estates Trustees, 45 LT 733, 46 JP 340, CA, 42 Digest 682, 941) ((1881), 8
QBD at p 93) is as follows:
the general rule under this head of law is, that where the Legislature gives power to a public body
to do anything of a public character, the Legislature means also to give to the public body all rights
without which the power would be wholly unavailable, although such a meaning cannot be implied in
relation to circumstances arising incidentally only.
Let us suppose for a moment that sub-s (8) had not been enacted: the situation which would then have
confronted the Transport Board would be to determine how the power conferred on it was to be exercised
without built-up areas being declared. It might well have been submitted in such a case that the Legislature,
having delegated the power to impose special speed limits, also intended (by implication) to authorise the
Board to declare built-up areas, for otherwise it would have been impossible for the Board to give full
exercise to the power conferred on it, and the rule quoted above would no doubt have been called in aid.
That, however, is not the position here. The situation here is that the Legislature, in sub-s (8), has given a
clear indication that built-up areas (other than the three mentioned) are to be declared by the Board. It
would, of course, have been much better if the Legislature had expressly authorised the Board in a separate
subsection to declare built-up areas. But it has not done so.
We have already stated that the authority to declare built-up areas is purely ancillary or incidental to the
real or substantive power which has been delegated. Having regard to that fact, and bearing in mind the
clear indication of the Legislature in sub-s (8), we consider that we would be defeating the intention of the
Legislature as expressed in that subsection, albeit impliedly so, if we were to hold that the way in which the
subsidiary power has been conferred offends against the rule in regard to delegated authority; and indeed,
we know of no authority that extends the rule to such subsidiary and incidental prerequisites.
Before the rule can be invoked, the object of the rule must be considered. 165Here the power which is
delegated to the Board is a power to interfere with the normal right of a persons lawful use of the road while

driving a motor vehicle. The Legislature could at any time interfere with the free and full exercise of such a
right but, if it determines that such a power should be exercised by a subordinate authority, then of course,
very clear and express language would be required to bring that about. That the Legislature has done, but
what it did not do was to express in equally clear language its delegation with respect to minor prerequisites
in order to give appropriate effect to the exercise of the power. In these circumstances we do not consider
that the failure to do so makes the Order of the Board invalid.
The appeal is allowed and the case is remitted to the magistrate to call upon the defence. We make no
order as to costs.
Appeal allowed.

(1959) 1 WIR 166

Springer v R
FEDERAL SUPREME COURTCRIMINAL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
15, 16, 17 JANUARY 1959

Criminal law Murder Provocation Case for Crown Summing-up inadequate and (on the subject of
provocation) erroneous Trial unsatisfactory New trial ordered.
Evidence Admissibility Statement in the presence and hearing of accused Res gestae.
The appellant was charged with the murder of EB and convicted. The principal prosecution witnesses were
E, daughter of the deceased, and A, husband of the deceased. E stated that, through a window, she saw
the appellant stab the deceased and rush out of the house through a shed door. A stated that he was
standing near the shed door when he heard his wife cry out Hitler is here and Come quickly. Hitler has
stabbed me. The appellant then burst through the shed door and A struggled with him until A heard E say
that As wife was dead. A statement made by the appellant that he had been attacked by A, E and the
deceased and that the deceased had stabbed him was put in evidence, but the appellant himself gave no
evidence and called no witnesses. The trial judge directed the jury that if they believed E and A their verdict
should be murder. In the event of the jury disbelieving E and A, and because of the appellants statement
that he had been stabbed by the deceased, the judge directed the jury as to provocation.
The trial judge admitted as evidence the statement of the deceased: Hitler is here. Come quickly. Hitler
has stabbed me on the grounds that it was a statement made in the presence of the accused. He did not
rule as to whether it was part of the res gestae.
Held: (i) the summing-up was inadequate because the jury were not warned of the paucity of evidence
against the appellant if E and A were disbelieved.
(ii) on the question of provocation the summing-up was erroneous because the provocation (if it existed at
all) consisted not merely of a stab-wound, but also of an assault by three people.
(iii) the statement of the deceased was properly admitted and was made in 166 circumstances which made it
part of the res gestae, ie it was relevant, spontaneous and contemporaneous with the facts in issue.
Appeal allowed; new trial ordered.
Cases referred to
R v Bedingfield (1879), 14 Cox, CC 341, 14 Digest (Repl) 451, 4370
R v Foster (1834), 6 C & P 325, 14 Digest (Repl) 451, 4368
Teper v R [1952] 2 All ER 447, 116 JP 502, [1952] 2 TLR 162, 96 Sol Jo 493, sub nom Lejzor Teper v R
[1952] AC 480, PC
Appeal
Appeal against conviction of murder by the Supreme Court of Barbados (Hanschell J, sitting with a jury) on
21 November 1958. The facts appear in the judgment.

H A Williams for the appellant

The Attorney-General and D A Williams for the Crown
HALLINAN CJ. delivered the judgment of the court: The appellant has been convicted of the murder of
Edna Belgrave on 24 July 1958. It is undisputed that the deceased dropped dead some 11 feet from her
house at Walkers, St Andrew, death being due to a stab wound through the heart. The principal prosecution
witnesses were Esther, the deceaseds daughter, and Arthur, her husband. Esther stated that the husband
and wife were working in a field some distance from their house in the morning. Esther closed the house
and joined them. While with her parents she noticed the appellant go towards their house. She followed
and from under the house she heard him inside disturbing their belongings. She returned to her parents and
all hastened to the house. The deceased entered the house and went into the bedroom. Through a window
Esther saw the appellant stab the deceased and rush out of the house through a door of the shed at the
back. Arthur grabbed the appellant and there was a struggle. She said that Arthur on hearing that his wife
was dead let go of the appellant.
Arthur stated that while Esther was in the front of the house and his wife, the deceased, was inside, he
was outside by the glass door of the shed at the back. He heard his wife cry: Hitler (by which name the
appellant was known) is here, and then: Come quickly. Hitler has stabbed me. He saw the appellant
burst through the glass door of the shed and he grappled him, but on hearing Esther say his wife was dead
he let the appellant go, lifted her off her face and shouted to her, but she was dead. He went to Dr Bannister
and then to the police.
The appellant apparently went straight to the police and made a report at 9 am. Arthur Belgrave
reported ten minutes later. The police met the appellant on the road and arrested and cautioned him. He
made no statement then. Later about 9.33 am at the police station he made a statement. He is a youth of
18 years. He stated that he had picked some peas in one Rudders garden and Belgrave and his wife had
attacked him. Arthur had cut him with a knife on his head and the deceased had stabbed him in the back.
Arthur had caught him by the testicles. He shouted and neighbours came. Then the Belgraves let him go
and he went to the police station. A medical examination showed that he had a laceration one inch long on
his forehead, a small abrasion on his abdomen and a wound one-eighth of an inch deep on his back. The
statement of the appellant was put in evidence but he gave no evidence and called no witnesses.
Esther stated that as the appellant somersaulted through the shed door his knife fell from his hand and
dropped in the gutter. It was found there by the police and identified as a knife which had been lent to the
appellant and which up to 24 July he had not returned. Sgt Mayers said that it was found with the handle in
mud and water and the blade pointing upwards. It had reddish stains on the blade. The analyst was unable
to find any blood on this knife.

167
The police also found 17 stains resembling blood near the bureau in the bedroom where Esther stated she
saw the appellant stab the deceased. Counsel for the defence has suggested that these stains may have
been made by blood dropping from Arthurs hands as he had lifted up his wifes face and had gone into the
bedroom before going for the doctor.
The learned trial judge in this case was at great pains to be fair to the appellant and this is shown in the
detail with which he summed up to the jury. Unfortunately, the very thoroughness with which he tried to
present the defence has, in our view, led him to present the case in a manner likely to have confused the
jury and thus to make the trial unsatisfactory.
The case as presented by the Crown was quite straightforward. It was that if Esther and her father
were believed, then the appellant stabbed the deceased in her bedroom without any provocation and their
only verdict could be murder. If these witnesses were not believed, the jury should acquit. There was no
issue as to the killing being manslaughter because of provocation. Unfortunately, the summing-up did not
present the case in the same way. The trial judge told the jury that if they believed Esther and her father
their verdict should be murder. If not (and we quote his words), You will be left, I suggest, with a reasonable
doubt that the boy caused her death. He then went on to say that simply because of the statement of the
appellant he would direct the jury on the law as to provocation. He said that provocation is some act or
series of acts done by the deceased to the accused, and he represented the evidence of provocation as
consisting of the appellants statement that the deceased stabbed him in the back with a knife and that the
wound was only one-eighth of an inch deep.
No doubt the trial judge directed the jury as to provocation out of his desire to be fair to the appellant.
But there was no evidence of provocation in the bedroom; provocation could only arise out of the struggle
near Rudders field or in the Belgraves yard if that struggle resulted in the death of the deceased. By
inference, therefore, the trial judge was in fact telling the jury that, if they rejected the evidence as to the
stabbing in the bedroom, they must consider whether the appellant stabbed the deceased outside her house
and if so whether he was so provoked as to reduce this killing to manslaughter.
Even if there was a case to go to the jury that the appellant killed the deceased in the yard, the
summing-up was inadequate and (on the subject of provocation) erroneous. The jury were not warned of
the paucity of the evidence (if Esther and her father were disbelieved) that the appellant killed the deceased.

The direction as to provocation was incorrect: the provocation did not merely consist of a wound one-eighth
of an inch deep but it consisted of an assault by three people on the appellant; moreover the blows blows to
be considered were those not only of the deceased, but also of her husband and daughter.
However, the basic objection to the summing-up is not that it dealt inadequately or erroneously with the
issue of killing outside the deceaseds bedroom, but that such an issue should have been left to the jury at
all. In our view, the jury should have been told that, if they disbelieved Esther and her father, they should
acquit.
It is impossible for this court to be sure whether the jury convicted on a finding that the fatal blow was
struck in the bedroom without any provocation, or in the yard after insufficient provocation. Indeed, the jury
may not have clearly distinguished these two possibilities.
For these reasons we consider that the trial was unsatisfactory and the court orders that the conviction
and sentence be set aside and that the case be sent back for a new trial.*

168
In view of the conclusion which this court has reached upon this appeal, it it not necessary and indeed
might be improper to discuss all the matters which have been raised on behalf of the appellant. A decision
on one matter, however, is desirable; that is to say, whether the evidence of Arthur Belgrave that he heard
the deceased say in the bedroom Hitler is here and Come quickly. Hitler has stabbed me was properly
admitted. The trial judge admitted it on the ground that it was a statement made in the presence of the
appellant but reserved the question and did not rule as to whether it was part of the res gestae. In our view,
it was so admissible. There has been much debate on such cases as R v Bedingfield ((1879), 14 Cox, CC
341, 14 Digest (Repl) 451, 4370) and R v Foster ((1834), 6 C & P 325, 14 Digest (Repl) 451, 4368) as to
when the particular facts of a case make declarations accompanying acts in criminal cases admissible. The
circumstances in which such declarations become admissible are that they should be connected with the
action or event in issue or relevant to the issue; they should be spontaneous; and they should be
contemporaneous or so nearly associated with the action or event in time, place and circumstance that the
declaration is part of the thing being donean item or part of the real evidence and not merely a reported
statement (Teper v R ([1952] 2 All ER 447, 116 JP 502, [1952] 2 TLR 162, 96 Sol Jo 493, sub nom Lejzor
Teper v R [1952] AC 480, PC) ([1952] AC at p 487)). The declaration of the deceased in the present case as
stated by her husband was made in such circumstances as to make it part of the res gestae.
Appeal allowed and new trial ordered.

(1959) 1 WIR 169

Gurton Goddard v Jane Jack

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
1, 2, 3 DECEMBER 1958, 16 FEBRUARY 1959

Probate Defences of want of testamentary capacity, of due execution, and of knowledge and approval;
and of undue influence Circumstances giving rise to suspicion Need for proper direction on application
of circumstances of suspicion to issues of due execution and want of knowledge and approval.
The appellant propounded a document as the last will and testament of SJ, of which he was named executor
and principal beneficiary. The respondent, mother of SJ, opposed probate on the grounds of want of
testamentary capacity, of due execution, and of knowledge and approval of the contents of the document,
and on the ground of undue influence. The trial judge found in favour of the appellant on the issue of
testamentary capacity. He also found that undue influence had not been proved. He made no specific
findings on the other issues but concluded that the appellant had not proved the document to be the last will
and testament of SJ because of certain suspicions and doubts which he felt, and refused probate.
Held: Since the trial judge had not properly directed himself on the application of the circumstances which
excited his suspicion to the issues of due execution and want of knowledge and approval, the case should
be remitted for retrial.

169

Observations of Willmer J, in Re R (Re R [1950] 2 All ER 117, [1951] P 10, 66 (Pt 2) TLR 26, 94 Sol Jo 386,
23 Digest (Repl) 134, 1389) approved and the rule in Barry v Butlin (Barry v Butlin (1838), 2 Moo PCC 480,
1 Curt 637, 12 ER 1089, PC, 23 Digest (Repl) 131, 1357) applied.
Appeal allowed; new trial ordered.
Editorial Note: As to opposition to Probate for want of Due Execution and for want of Knowledge and
Approval, see 16 Halsbury, 3rd Edn, pp 203-206, paras 360-363, 366-368; and for cases see 23 Digest
(Repl), pp 98-103, 130-135, 969-1039, 1354-1392.
Cases referred to
Cleare v Cleare (1869), LR 1 P & D 655, 38 LJ P & M 81, 20 LT 497, sub nom Cleare v Fowler & Cleare, 17
WR 687, 23 Digest (Repl) 279, 3402
Barry v Butlin (1838), 2 Moo PCC 480, 1 Curt 637, 12 ER 1089, PC, 23 Digest (Repl) 131, 1357
Tyrrell v Painton [1894] P 151, 70 LT 453, 42 WR 343, 6 R 540, CA, 23 Digest (Repl) 132, 1368
Re R [1950] 2 All ER 117, [1951] P 10, 66 (Pt 2) TLR 26, 94 Sol Jo 386, 23 Digest (Repl) 134, 1389
In the Estate of Musgrove, Davis v Mayhew [1927] P 264, 96 LJP 140, 137 LT 612, 43 TLR 648, 71 Sol Jo
542, CA, 23 Digest (Repl) 253, 3088
Neal v Denston (1932), 147 LT 460, 48 TLR 637, 76 Sol Jo 691, Digest Supp
Harris v Knight (1890), 15 PD 170, 62 LT 507, 6 TLR 234, CA, 44 Digest 280, 1126
Spiers v English [1907] P 122, 76 LJP 28, 96 LT 582, 23 Digest (Repl) 266, 3240
Low v Guthrie [1909] AC 278, 78 LJPC 126, HL, 23 Digest (Repl) 133, 1370
Parfitt v Lawless (1872), LR 2 P & D 462, 41 LJ P & M 68, 27 LT 215, 36 JP 822, 21 WR 200, 23 Digest
(Repl) 128, 1323
Craig v Lamoureux [1920] AC 349, 89 LJPC 22, 122 LT 208, 36 TLR 26, PC, 23 Digest (Repl) 129, 1332
In the Goods of Peverett [1902] P 205, 71 LJP 114, 87 LT 143, 23 Digest (Repl) 102, 1030
Appeal
Appeal of Gurton Goddard, executor of the estate of Samuel Jack, from a judgment of Watkin-Williams J, a
judge of the Supreme Court of Trinidad and Tobago, dated 8 March 1958, refusing probate of a document
propounded as the last will and testament of Samuel Jack.
Sir Courtenay Hannays QC and ARN Robinson (instructed by M Fortier) for the plaintiff-appellant
JA Wharton QC and E Hamel wells (instructed by L A Wong) for the defendant-respondent
HALLINAN CJ. This is a suit to prove the will of Samuel Jack in solemn form. The testator made his will on
20 April 1954, and died on 16 May. He appointed the plaintiff-appellant as his executor and also made him
the principal beneficiary. The estate duty affidavit valued the deceaseds property at $7,674.14. The
appellant under the will receives land and a chattel house worth some $3,500, and cash amounting to about
$3,000. He left nothing to his mother, a very old woman; nothing to his two natural children (aged 18 and 16
at the time of the testators death); and nothing to the childrens mother. The testators mother is the
defendant-respondent.
The issues at the trial were four: Was the will duly executed? Was the testator of sound mind, memory
and understanding ? Did he know and approve of the contents of the will? And was the execution of the will
procured by the undue influence of the appellant and his reputed wife, Doris Skeete?
In a somewhat lengthv judgment the court below summarised the evidence 170 and gave its findings on
at least one and probably two of the issues in favour of the appellant; but, because of certain suspicions and
doubts, finally concluded that the appellant had not proved the will to be the last will and testament of
Samuel Jack and held that it was not entitled to probate.
I think it will help to explain my opinions on this appeal and possibly it will be fairer to the opinions of the
court below if I attempt to summarise the judgement of the trial judge by mentioning each topic in the order
in which it appeared in that judgment.
He first considers whether the gifts and devises in the will would, having regard to the deceaseds
relations with the plaintiff and his reputed wife, with the deceaseds mother and with his natural children,
tend to show that the deceased was not of sound mind, memory and understanding, or was unduly
influenced by the plaintiff and his reputed wife. He finds that the plaintiff and the deceased were close
friends for some thirty years; that the relationship between the deceased and his mother was not one of
great mutual affection, but that he probably felt an obligation to make a small contribution towards her
maintenance for the rest of her life; and that he had provided funds for the education of his children and may
well have regarded his obligations as discharged. He concludes : The fact that Samuel Jacks will does not
provide for his mother or for his sons does not lead me to suppose either that his mind was incapable of

forming a balanced decision or that it was so dominated by another person as to make him incapable of
expressing his own volition.
The learned trial judge next considers the medical history of the deceased in so far as it might have
affected his capacity as a testator. He finds that the medical evidence discloses that Jack suffered from a
disease which could have caused him sufficient pain over a sufficiently lengthy period to disturb the balance
of his mind; however, the trial judge did not believe that during the period from 17 April when he was
discharged from hospital, until 16 May when he died, he was in any severe pain. The learned judge sets out
the note written by the deceased after he had taken the poison whereof he died. In that note the deceased
said : The pain which I am suffering I cannot stick much longer Please dont blame my friends Gurton and
Doris. The judges comment on this note is : There is nothing about it to suggest weak intellect.
The judge then returns to the issue as to undue influence. He concludes that:
It cannot be said that undue influence has been established here, but considerable suspicion has been
aroused by reason of the evasive nature of the plaintiffs evidence, by the fact that an attempt has been
made by him to suppress material evidence, and because there is reason to suppose that other evidence
has been successfully suppressed which might have altered the whole complexion of the case. As I
understand the judgment, the trial judge is here referring to the appellants attempt to conceal the fact that
he accompanied the deceased on his last visit to Trinidad ; and further that the judge considered it
improbable that the will should have been made on 20 April and have remained in the drawer of the
deceaseds bureau until his death, without the deceased ever telling the appellant anything about it. The
judges comment on this is as follows: This is yet another circumstance which causes me to suspect that
Goddard is deliberately minimising the part he played.
The judge then deals with the evidence of Mabel Skinner, Arnold and Parks, the witnesses mainly
concerned with the issue as to due execution. Mabel Skinner stated that she was a friend of the deceased
and supplied him with food during his last days in his own house before he went to live and die in the house
of the appellant. Mabel Skinner stated that she, at the request of the deceased, called Arnold, a man of 77
years, who had been a lawyers clerk for about 22 years. She stated that the will was not made in her
presence but the same afternoon she read the will and criticised the lack of provision for the deceaseds
mother. She also stated that the deceased told her that the will was

171
to be placed in the drawer of his bureau and that she was to tell Goddard in the event of his death.
The two witnesses to the execution of the will are Arnold and Parks. Parks gave contradictory evidence
as to whether he had or had not seen the testators signature and the trial judge summed him up as a
completely worthless witness. Nor does he regard Arnolds evidence as satisfactory. He considered it
improbable that Arnold should have written the will without a single erasure, although he had not taken
preliminary instructions or made any specific enquiry as to the description of the deceaseds lands devised
in this will. The judge considered that Arnold had come to court having quite obviously learned that which he
had come to say by heart, and he recited it in the manner of a school-boy. It must be remembered that the
judges doubts about Arnolds evidence are important, not only because Arnold was one of the witnesses to
the testators signature, but because Arnold was the man who drew the will, and the only witness as to its
being read over to the deceased. The trial judge concludes his observations on the evidence regarding due
execution as follows:
There have been a number of cases in which the court has upheld a will even though the evidence
of one or even both attesting witnesses does not amount to proper attestation. Those are cases in
which the court entertains no suspicion and believes that the witness or witnesses are mistaken as a
result of lapse in memory. This is not the case here. Arnolds evidence coupled with the fact that
Parks swore to an affidavit of due attestation drafted in the office in which Arnold works, and in all
probability drafted by Arnold himself, is not enough to remove my doubts.
Mabel Skinner says that Jack showed her the will on the afternoon of the day on which it was
executed, and that they discussed its provisions. This might be enough to tip the scale in the plaintiffs
favour if I considered Mabel Skinner to be a dependable witness. I do not think that she is. She stated
that Jack denounced his mother and she went on to say that over a period of fifteen or twenty years
Jack had proclaimed that he would leave nothing to his mother. The notion that a healthy man in his
early thirties would anticipate predeceasing his mother, who was then about 65, is patently absurd.
The issue as to undue influence was, I think, effectually dealt with in the judgment of the court below.
The burden of proof was on the respondent, and the trial judge found the failed to discharge it. However, the
evidence aroused suspicions in the mind of the trial judge and I shall later have to consider whether these
suspicions concerned circumstances relevant to the preparation or execution of the will itself. The burden of
proving testamentary capacity lay on the appellant. Having regard to the pleadings and to the deceaseds
medical history and eventual suicide, the burden of proof could not be discharged by mere proof of due
execution. Although the trial judge makes no general finding that the appellant had proved the testamentary

capacity of the deceased, he finds that the will was not irrational, having regard to the relations between the
deceased on the one hand and his mother, children, and his friend, the appellant, on the other. He finds that
during the period in which the will was made the deceased was not suffering from any severe pain and that
the suicide note of 16 May does not suggest weak intellect. I think that from these findings it would be
reasonable to conclude that the judge found testamentary capacity to be established.
We are left with the issues of due execution and of knowledge and approval. The trial judge does not
deal specifically with the issue of want of knowledge or approval. When at the conclusion of his judgment he
states that I have a very real doubt whether the will produced is the last will and testament of Samuel Jack
and I hold it is not entitled to probate, it is not clear if his 172 suspicions extend to both issues, or to only
one, and if so, which one. The burden of proving due execution under s 9 of the Wills Act [U K] is on the
party propounding the will, who must prove that the will was made or acknowledged by the testator in the
presence of at least two witnesses present at the same time, who subscribed their signatures in the
presence of the testator. The law as to the burden of proving knowledge and approval is very clearly set out
in the following passage from the judgment of Lord Penzance in Cleare v Cleare ((1869), LR 1 P & D 655,
38 LJ P & M 81, 20 LT 497, sub nom Cleare v Fowler & Cleare, 17 WR 687, 23 Digest (Repl) 279, 3402)
((1869), LR 1 P & D at pp 657-658):
That the testator did know and approve of the contents of the alleged will is therefore part of the
burthen of proof assumed by everyone who propounds it as a will. This burthen is satisfied, prima
facie, in the case of a competent testator by proving that he executed it. But if those who oppose it
succeed by a cross-examination of the witnesses, or otherwise, in meeting this prima facie case, the
party propounding must satisfy the tribunal affirmatively that the testator did really know and approve
of the contents of the will in question before it can be admitted to probate.
Certain circumstances of suspicion may cause a court to refuse probate. The rule on this subject was
stated by Parke B, in Barry v Butlin ((1838), 2 Moo PCC 480, 1 Curt 637, 12 ER 1089, PC, 23 Digest (Repl)
131, 1357) ((1838) 2 Moo PCC at p 482) as follows:
It a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought
generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining
the evidence in support of the instrument, in favour of which it ought not to pronounce unless the
suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will
of the deceased.
The rule as stated by Parke B, was amplified by Davey LJ, in Tyrrell v Painton ([1894] P 151, 70 LT 453, 42
WR 343, 6 R 540, CA, 23 Digest (Repl) 132, 1368) ((1894), P at p 159) as follows:
It must not be supposed that the principle in Barry v Butlin ((1838), 2 Moo PCC 480, 1 Curt 637, 12
ER 1089, PC, 23 Digest (Repl) 131, 1357) is confined to cases where the person who prepares the will
is the person who takes the benefit under itthat is one state of things which raises a suspicion; but the
principle is, that wherever a will is prepared under circumstances which raise a well-grounded
suspicion that it does not express the mind of the testator, the court ought not to pronounce in favour of
it unless that suspicion is removed.
In Re R ([1950] 2 All ER 117, [1951] P 10, 66 (Pt 2) TLR 26, 94 Sol Jo 386, 23 Digest (Repl) 134, 1389)
the question arose as to what sort of circumstances could be taken into account in arousing such suspicions
as could lead a court to refuse probate. After considering the authorities, Willmer J ([1950] 2 All ER at p
121) concludes:
In dealing with a question of knowledge and approval of the contents of a will the circumstances
which are held to excite the suspicions of the court must be circumstances attending, or at least
relevant to, the preparation and execution of the will itself. This view is, I think, confirmed by the
decision of the Court of Appeal in In the Estate of Musgrove, Davis v Mayhew ([1927] P 264, 96 LJP
140, 137 LT 612, 43 TLR 648, 71 Sol Jo 542, CA, 23 Digest (Repl) 253, 3088), where it was held that a
suspicion engendered by extraneous circumstances, arising subsequent to the execution of the will,
was not a sufficient reason for rebutting the presumption of due execution of a will regular on its face.
In the course of an exhaustive judgment Lord Hanworth MR, said ([1927] P at p 280):
What of the suspicion? It is not such as attaches to the document itself in the sense in which Sir
James Wilde uses the term in Guardhouse v Blackburn, or as it arose in Tyrrell v Painton ([1894] P
151, 70 LT 453, 42 WR 343, 6 R 540, CA, 23 Digest (Repl) 132, 1368) in the preparation of the will.
The wide definition of suspicion stated by Lindley LJ, in the latter case, that it extends to all cases in
which circumstances 173 exist which excite the suspicion of the court, appears to have been used in

reference to the preparation of the will, its intrinsic terms, and the circumstances surrounding its
preparation and execution, and Davey, LJ, seems to have had the same matters in mind. Their
judgments were not intended to alter, but to affirm the principles laid down in the cases I have cited.
Counsel for the appellant has argued that, notwithstanding the judges doubts, he should have found for
the appellant on the issue as to due execution. He has strongly relied on the decision in Neal v Denston
((1932), 147 LT 460, 48 TLR 637, 76 Sol Jo 691, Digest Supp) where the court applied the presumption of
law omnia praesumuntur rite esse acta in favour of the validity of a will where the evidence of the attesting
witnesses as to the circumstances of the execution were found to be wholly unsatisfactory. It is, I think,
unfortunate that the learned trial judge, in concluding his observations on the evidence regarding due
execution (which I have set out in extenso earlier in this judgment), should have, as it were, invoked the
principle expressed in the line of cases concerning suspicious circumstances in order to override the maxim
omnia praesumuntur rite esse acta in its application to the issue of due execution; for it seems to me that
such suspicious circumstances as existed were relevant to the issue of want of knowledge and approval
rather than to want of due execution.
I have examined the judgment to see what were the suspicions entertained by the trial court which
could fairly be categorised as circumstances attending or at least relevant to the preparation and execution
of the will itself. First of all, the judge had suspicions about the appellant trying to minimise the part he
playedhe concealed the fact that he accompanied the deceased on his last visit to Trinidad, and it was very
improbable that, as he alleged, the deceased told him nothing about the will or his appointment as executor.
The judge suspects that other evidence may have been suppressed which might have altered the whole
complexion of the case. These suspicions of the judge are expressed in that part of the judgment where he
finds that undue influence has not been proved. The fact that the appellant and Arnold displayed reluctance
to produce the will, the judge finds may only be due to a desire to avoid an unpleasant scene with the
deceaseds family. Secondly, the trial judge obviously considered that the absence of evidence of
preliminary instructions from the testator to Arnold was a suspicious circumstance, and the suspicion was
strengthened by the manner in which Arnold gave his evidence.
Although I have mentioned circumstances of suspicion referred to by the trial judge, it is not at all
certain whether these, and these alone, were the circumstances which gave rise to his final doubts. But
assuming these were the suspicious circumstances he had in mind, how can they affect the issue as to due
execution?
The appellant had proved the signature of the testator at the foot of the will, and that of the two
witnesses. This would appear to be prima facie evidence of due execution and the maxim omnia
praesumuntur rite esse acta would apply as to the presence of the witnesses when the testator signed, and
the presence of the testator when each witness signed. The court rejected the evidence of Parks who, on
one occasion, stated that he had not seen the testators signature. His evidence, under the authority of Neal
v Denston ((1932), 147 LT 460, 48 TLR 637, 76 Sol Jo 691, Digest Supp), would not prevent the application
of the maxim; nor would the absence of an attestation clause do so (Harris v Knight ((1890), 15 PD 170, 62
LT 507, 6 TLR 234, CA, 44 Digest 280, 1126)). I find great difficulty in seeing how the suspicions which I
have mentioned specifically can be related to the issue of the due execution and yet it is to this issue that
the trial judge appears to apply them.
Turning now to the second issue, that of want of knowledge and approval, the passage I have cited
from Cleare v Cleare (1869), LR 1 P & D 655, 38 LJ P & M 81, 20 LT 497, sub nom Cleare v Fowler &
Cleare, 17 WR 687, 23 Digest (Repl) 279, 3402) makes it plain that the appellant, upon establishing a prima
facie case that the will was duly executed by a competent testator, also discharged prima facie the burden
that is on him with

174
regard to this second issue. The trial judge does not appear to have related his suspicions specifically
to this second issue to see whether they were circumstances attending or at least relevant to the preparation
and execution of the will and sufficiently strong to meet the prima facie case. Yet, in my view, it is to this
issue that his suspicions must apply if probate is to be refused. It is significant that in Tyrrell v Painton
([1894] P 151, 70 LT 453, 42 WR 343, 6 R 540, CA, 23 Digest (Repl) 132, 1368), where there were strong
circumstances of suspicion, Lindley LJ, said, The question for the jury would be, did the testator know and
approve of this will?
The confusion in the mind of the trial judge as to the evidence relevant to these two issues is also
apparent in the paragraph containing his final observation on Mabel Skinners evidence. Her evidence as to
discussing the will with the testator on the afternoon of the day of its execution goes to proof of knowledge
and approval, rather than to due execution. Yet in that and the preceding paragraph of the judgment, as I
understand it, the judge is dealing with the issue of due execution.
Since, in my view, the trial judge did not properly direct himself on the application of the circumstances
which excited his suspicion to the issues of due execution, and to that of want of knowledge and approval, I

have come to the conclusionreluctantly because of the expense such a course entailsthat the judgment of
the court below should be set aside and the case be sent back for retrial.
The costs of the trial in the court below and here are to be taxed and paid out of the estate.
RENNIE J. I have seen the judgment of the learned Chief Justice in this appeal. I agree that the appeal
should be allowed and a new trial ordered.
I have come to this decision because the judgment of the court below does not appear to deal with the
issue of Jacks knowledge and approval of the contents of the will and because there appears to be a
misunderstanding as to the burden of proof in relation to the issue of undue influence, and also because
there appears to be some confusion of the raised in the case. This misunderstanding and confusion are
apparent when one notices that at that stage of the judgment where the issues which had not then been
considered aredue execution of the will, knowledge and approval of its contents by Jack, and undue
influenceit is stated:
In law, the burden of proving that the will sought to be propounded is the last will of a free and
capable testator rests upon the party propounding it. Once he has prima facie discharged that burden,
it shifts to a defendant alleging undue influence. It cannot be said that undue influence has been
established here but considerable suspicion has been aroused by reason of the evasive nature of the
plaintiffs evidence, by the fact that an attempt has been made by him to suppress material evidence,
and because there is reason to suppose that other evidence has been successfully suppressed which
might have altered the whole complexion of the case. It stands to reason that in this case the clearest
evidence that the will sought to be propounded does express the free wishes of the testator and was
executed in the manner required, is essential in order to still the suspicions which have been aroused.
In the last sentence of this passage from the judgment the learned judge required the clearest evidence
that the will does express the free wishes of the testator to still the suspicions which have been aroused. I
take that to mean that he was casting on the appellant the burden of proving there was no undue influence.
In this he went wrong in requiring the appellant to discharge a burden that the law does not impose on him.
It was the respondent who asserted that the execution of the will was secured by the undue influence of the
appellant and his reputed wife, Doris Skeete, and so the burden was on him 175 to prove that allegation.
And not only is the burden of proving it on the respondent but it ought never to be put forward unless the
party who pleads it has reasonable grounds upon which to support it said Sir Gorell Barnes, in Spiers v
English ([1907] P 122, 76 LJP 28, 96 LT 582, 23 Digest (Repl) 266, 3240) ([1907] P at p 124). This
proposition is perhaps even better put in the head-note to Low v Guthrie ([1909] AC 278, 78 LJPC 126, HL,
23 Digest (Repl) 133, 1370) as follows:
The rule that where a will is prepared by a party who takes a benefit under it, that is a
circumstance which forms a just ground of suspicion and requires clear and satisfactory proof that the
instrument contains the real intention of the testator, does not authorise the court to consider
suggestions of fraud or undue influence of which no foundation is laid in evidence.
So it would seem, that not only was the burden of proof misplaced but on the issue of undue influence
matters were considered that ought not to have been considered. But I would even go further and say that
the judgment shows a misconception of what can amount to undue influence. There is nothing in this case
to suggest the use of force and coercion which are ingredients of undue influence when dealing with a will.
These ingredients are made necessary in establishing undue influence according to Williams J, as quoted
by Lord Penzance in Parfitt v Lawless ((1872), LR 2 P & D 462, 41 LJ P & M 68, 27 LT 215, 36 JP 822, 21
WR 200, 23 Digest (Repl) 128, 1323) ((1872), LR 2 P & D at p 470) as follows:
the influence which will set aside a will must amount to force and coercion destroying free agency,
it must not be influence of affection or attachment.
If therefore the appellant had said that he knew that Jack had made a will and that he knew its contents,
that knowledge could not prove undue influence. If, in fact, he had been instrumental in framing the will
under which he obtained a bounty, he would be in no different position from an ordinary legatee; see Craig v
Lamoureux ([1920] AC 349, 89 LJPC 22, 122 LT 208, 36 TLR 26, PC, 23 Digest (Repl) 129, 1332) ([1920]
AC at p 356). Likewise the fact that Arnold might have received instructions prior to the making of the will
could not amount to undue influence, not even if those instructions had come from the appellant. That is my
understanding of the reasoning in Craig v Lamoureux ([1920] AC 349, 89 LJPC 22, 122 LT 208, 36 TLR 26,
PC, 23 Digest (Repl) 129, 1332).
To go back to the last sentence of the quotation from the judgment, if instead of free wishes the
learned judge had said real intentions the burden would then have been correctly placed on the appellant,

but then it would be to prove the issue of Jacks knowledge and approval of the contents of the will, and not,
as it stands in the judgment, to prove there was no undue influence.
When dealing with the issue of due execution of the will, the judgment states:
There have been a number of cases in which the court has upheld a will even though the evidence
of one or even both attesting witnesses does not amount to proper attestation. Those are cases in
which the court entertains no suspicion and believes that the witness or witnesses are mistaken as a
result of a lapse in memory. That is not the case here. Arnolds evidence coupled with the fact that
Parks swore to an affidavit of due attestation drafted in the office in which Arnold works, and in all
probability drafted by Arnold himself, is not enough to remove my doubts.
Mabel Skinner says that Jack showed her the will on the afternoon of the day on which it was
executed and that they discussed its provisions. This might be enough to tip the scale in the plaintiffs
favour if I considered Mabel Skinner to be a dependable witness.
In the context of this passage it would seem that Mabel Skinners evidence was treated as going to
prove execution of the will in accordance with the provisions of the Wills and Probate Ordinance [T]. But
could it? The fact that the deceased showed her the will in the afternoon and discussed its provisions
cannot prove that Jack signed the will in the presence of two witnesses, who, in his presence and in the
presence of each other, subscribed their names as 176 witnesses. On the other hand, it could be evidence
of Jacks knowledge and approval of the contents of the will. But if it can be said that the learned judge
considered Mabel Skinners evidence in relation to Jacks knowledge and approval of the contents of the
will, then it must be taken that he was satisfied that the will was properly executed, otherwise her evidence,
if believed, could not have tipped the scale in the appellants favour.
I am unable to find in the judgment any consideration of the issue of Jacks knowledge and approval of
the contents of the will. It is on this issue it seems to me that the circumstances that gave rise to a suspicion
in the mind of the learned judge could have been taken into account. Those circumstances, such as they
are, should be weighed against the evidence that goes to show Jacks knowledge and approval. I say such
as they are because, unlike the reported cases, there is no evidence that the appellant prepared the will or
was instrumental in its preparation. In the instant case the evasive nature of the appellants evidence, the
fact that he made an attempt to suppress material evidence (Jacks trip to Trinidad) and a reason to suppose
that other evidence has been successfully suppressed, are the circumstances that gave rise to the
suspicion. This brings a question to my mindis this not a suspicion to ground a suspicion? That question
the judge who hears the new trial may be called upon to answer, as he no doubt will consider the evidence
relating to Jacks knowledge and approval of the contents of the will.
ARCHER J. I had the advantage of reading beforehand the judgment which the Chief Justice has delivered.
I agree that the appeal should be allowed, and, as he has dealt fully with the matter, I need only indicate
very briefly the reasons for my concurrence.
The judge having found that the deceased was of testamentary capacity, and that undue influence,
although he suspected it, had not been proved, the issues then to be decided were as to knowledge and
approval of the contents of the document propounded, and to due execution. There was no evidence
connecting the plaintiff or his reputed wife with the preparation and execution of the will, and the suspicion
which the judge felt concerning the plaintiff was suspicion of undue influence and not of such circumstances
as could properly be taken into account upon a consideration of the issue of knowledge and approval.
With the rejection of Parks as a credible witness the evidence which the judge had to consider in
determining the remaining issues was that of Arnold and Skinner. The main points of Arnolds evidence
were : (i) that he had been sent for by the deceased, (ii) that he had prepared the will from verbal
instructions given there and then, (iii) that he had read the will to the deceased, (iv) that he had handed it to
the deceased. The main points of Skinners evidence were: (i) that she had been sent by the deceased to
call Arnold for the purpose of making the will, (ii) that she had been shown the will some time after it had
been made, (iii) that she had discussed its provisions with the deceased, (iv) that he had explained to her
why he had left nothing to his mother, and (v) that he had asked her to tell the plaintiff where the will could
be found in the event of his death. Arnolds evidence was relevant to both issues, and a finding that he had
received preliminary instructions for making the will did not dispose of either issue.
If the will had not been prepared and executed in the circumstances to which he deposed, but had been
prepared and executed in circumstances as to which there was no evidence, it still remained to be
ascertained whether the testator knew and approved of it and, if he did, whether it could be presumed that it
had been duly executed, despite the unsatisfactory nature of the evidence of the attesting witnesses.
Skinners evidence was material to the question of knowledge and approval and afforded no proof of due
execution, but the judge 177 not only related it to the issue of due execution, but related Arnolds evidence
only to that issue. He made no finding on the issue of knowledge and approval and based refusal to probate
on his suspicion of undue influence. He erred in so doing. If he had, however, addressed his mind to the

issue of knowledge and approval and had come to the conclusion that there had been no satisfactory proof
that the testator knew and approved of the contents of the document, I should have felt unable to disturb his
finding, but the question he has left unanswered cannot be resolved by this court, either by a finding in the
plaintiffs favour, or by a finding adverse to the plaintiff and fatal to the grant of probate.
It has been submitted by counsel for the appellant that the principle omnia praesumuntur rite esse acta
ought to be applied and due execution presumed, and he has relied on Neal v Denston ((1932), 147 LT 460,
48 TLR 637, 76 Sol Jo 691, Digest Supp) and In the Goods of Peverett ([1902] P 205, 71 LJP 114, 87 LT
143, 23 Digest (Repl) 102, 1030), but, in those cases, the court in applying the maxim was giving effect to
the known wishes of the testators. In this case knowledge and approval is an undecided issue and there is
no room for the application of the principle.
For these reasons I agree that there should be a retrial of the action.
Appeal allowed; new trial ordered.

(1959) 1 WIR 178

George Eric Leyland Laforest (Clerk Of The House Of

Representatives) v Morris Cargill
FEDERAL SUPREME COURTORIGINAL JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
19, 20, 25, 26 FEBRUARY, 13 APRIL 1959

Petition Disputed vacancy in House of Representatives Manager of company a member of the House
Business transactions between company and Federal Government Effect on managers membership of
House West Indies (Federation) Order in Council, 1957 Legislature (Appointment, Election and
Membership Controversies) Regulations, 1958.
The respondent was elected a member of the House of Representatives of the Federation and took his seat
on 18 April 1958. On 23 August 1958, he became the manager of the Port of Spain Gazette (1955) Ltd, a
company registered in the Territory of Trinidad and Tobago, and editor of the Trinidad Chronicle, a
newspaper owned and published by the company. By authority of a resolution of the House of
Representatives passed on 11 December 1958, the Clerk of the House of Representatives presented a
petition dated 24 January 1959, to the Federal Supreme Court, in which he alleged that while the
respondent was manager of the company and of the newspaper the company entered into certain business
transactions with the Federal Government for or on account of the public service, and prayed that it might be
determined that the respondent had vacated his seat in the House of Representatives. The business
transactions alleged were (1) an agreement by the company to provide, and by the Federal Government to
take, for a period of one year beginning on 31 July 1958, advertising space in the newspaper on certain
terms, and (2) acceptance and publication by the company on the agreed terms on certain dates during the
period 3 August 1958, to 11 January 1959, of eight advertisements submitted by the Federal Government.
A statement of admitted facts was agreed. Annexed to the statement were agreed documents which
included correspondence that had passed between the company and the Federal Government, the
agreement (designated an advertising 178 contract) alleged in the petition, and a schedule showing the
dates on which advertisements had appeared in the newspaper. From the statement and the schedule it
appeared that from time to time between February 1958, and January 1959, the company had, at the
request of the Federal Government, published in its newspaper eight advertisements of which each of four
had been covered by a separate order issued by the Federal Government, and of which the other four had
been submitted under cover of two orders, each of these two orders requesting publication on two dates.
Paragraph (f) of Article 23 (2) of the Constitution provides that a member of the House of Representatives
shall vacate his seat in the House if he becomes a party to any contract with the Federal Government for or
on account of the public service, or if any firm in which he is a partner, or any company of which he is a
director or manager, becomes a party to any such contract, or if he becomes a partner in a firm or a director
or manager of a company which is a party to any such contract.
Held: (i) the documents did not disclose an offer by the Federal Government to take, or an undertaking by
the company to provide, advertising space in the newspaper.

(ii) (per Hallinan CJ) each request by the Federal Government to publish an advertisement was a separate
offer to take advertising space and each publication was an acceptance of that offer; (per Rennie J) each
order for publication on a single date was an offer by the Federal Government to take advertising space for
that date but the question whether the orders for publication on two dates constituted a single offer in each
case depended on the wording of those orders, and, since they had not been exhibited, could not be
determined.
(iii) (Archer J, dissenting) the respondent had not vacated his seat: (per Hallinan CJ) because the only
contracts before the court were contracts where acceptance and performance were simultaneous and no
continuing obligation resulted: (per Rennie J) because the only contracts proved were brought into being by
publication of advertisements which in each case also performed the contract on the part of the company so
that there was not a moment of time when it was under a contractual obligation to the Federal Government.
Petition dismissed.
Editorial Note. Article 42 of the Constitution of the Federation provides that the Federal Supreme Court
shall have exclusive jurisdiction to determine inter alia any question whether any member of the House of
Representatives has vacated his seat therein. Regulation 27 of Part II of the Legislature (Appointment,
Election and Membership Controversies) Regulations, 1958, made by the Governor General on 14 February
1958, in exercise of the powers conferred on him under s 2 of the West Indies (Federation) Order in Council,
1957, provides for reference of questions as to vacancies in the House of Representatives by petition to the
Federal Supreme Court for determination. A reference may be made on the authority of a resolution of the
House of Representatives in which event the Clerk of the House of Representatives is the nominal
petitioner. Regulation 28 (2) provides that the petition shall be delivered to the deputy registrar of the
Federal Supreme Court in the Territory for which the person to whom the petition relates was elected, and
for the transmission of the petition by the deputy registrar to the Registrar of the Federal Supreme Court.
Cases referred to
Great Northern Ry Co v Witham (1873), LR 9 CP 1, 29 LT 471, 22 WR 48, 12 Digest (Repl) 231, 1729
Harvey v Facey [1893] AC 552, 62 LJPC 127, 69 LT 504, 42 WR 129, 9 TLR 612, 1 R 428, PC, 12 Digest
(Repl) 57, 314
Tranton v Astor (1917), 33 TLR 383, 22 Digest (Repl) 21, 31

179
Royse v Birley (1869), LR 4 CP 296, sub nom Manchester Election Petition, Royse v Birley, 38 LJCP 203,
20 LT 786, 17 WR 827, 36 Digest (Repl) 379, 239
Grenfell v Inland Revenue Comrs (1876), 1 Ex D 242, 45 LJQB 465, 34 LT 426, 24 WR 582, 42 Digest 619,
198
The Schiller (Cargo Ex) (1877), 2 PD 145, 36 LT 714, 3 Asp MLC 439, CA, 42 Digest 619, 200
Powell v Lee (1908), 99 LT 284 72 JP 353, 24 TLR 606, 6 LGR 840, DC, 12 Digest (Repl) 72, 401
Re Williams Settlement, Williams v Williams, [1911] 1 Ch 441, 80 LJ Ch 249, 104 LT 310, 55 Sol Jo 236, 40
Digest (Repl) 546, 548
Percival, Ltd v London County Council Asylums & Mental Deficiency Committee (1918), 87 LJKB 677, 82 JP
157, 16 LGR 367, 12 Digest (Repl) 702, 5367
Petition
Petition by the Clerk of the House of Representatives praying for a declaration that the respondent, the
manager of a company, had vacated his seat as a member of the House of Representatives.
J A Wharton QC and P T Georges (instructed by Wong and Sanguinette Trinidad and Daisy Chambers,
Jamaica) for the petitioner
Sir Courtenay Hannays QC H O B Wooding QC and Eric Butt (instructed by J D Sellier & Co Trinidad and
Donald Hendry Jamaica) for the respondent
HALLINAN CJ. This is a petition brought under the procedure prescribed in the Legislature (Appointment,
Election and Membership Controversies) Regulations, 1958, to have this court determine whether the
respondent should vacate his seat in the House of Representatives. It is alleged that while he was manager
of the Port of Spain Gazette (1955) Ltd and of that Companys newspaper, the Trinidad Chronicle, the
Company became party to a contract with the Federal Government for or on account of the public service,
and that the provisions of Article 23 (2) (f) of the Constitution require that he vacate his seat.
The respondent took his seat in the House of Representatives on 18 April 1958, and on 23 August of
that year became editor of the Trinidad Chronicle and manager of the Company that owned it. On 20

February 1958, the Federal Information Officer had asked the newspapers advertising manager (Mr
Schofield) to furnish a schedule of rates and for an assurance that advertisements of the Federal
Government would receive prominent display.* On 2 July Mr Schofield sent the following letter to the
Federal Information Officer:
Trinidad Chronicle
5 St Vincent Street,
Mr A C Ferreira, Port of Spain,
Federal Information Office, trinidad, BWI
Whitehall, 2nd July 1958.
Maraval.
Dear Mr Ferreira,
Following your request for details about the advertisement rates for the Federal Government, I
attach a contract form which I trust will meet your requirements.
Your sincerely,
/s/ Don Schofield
P S You will note that I have billed you at our lowest rate assuming that you will be taking over
1,500 inches within the year. If you do not feel this will be so, please let me know and we will revise
the contract. If you find it in order please sign and return duplicate to me.

180
In this letter was enclosed the rate card * which showed the rates according as to whether the space taken
was up to 500 inches, up to 1,500 inches or over 1,500 inches. The contract form amplified the
newspapers terms for buying more space than 1,500 inches; the advertiser must buy this space within a
period of one year beginning 31 July If over 1,500 inches of space was not purchased in any one year, the
contract form provided as follows:
It is clearly understood that in the event of less than the above contract space being used, you will
be billed at the corresponding rate for the actual space used.
In the event of the number of inches contracted for being utilised before the expiry date of the
above, it shall be deemed that a renewal of the contract is being effected, and if this automatic contract
renewal is not honoured you will be rebilled at the casual rates applying from the date of the expiry of
the above contract.
This contract form was signed by the Federal Information Officer but not by or on behalf of the newspaper.
Between 31 July and the date of the petition six advertisements (two of which were inserted twice) were
published by the newspaper at the request of the Federal Information Officer and at the rate specified in the
contract form. Publication of five of these six advertisements was requested and carried out while the
respondent was manager of the newspaper company.
From a perusal of the letter of 2 July, the contract form and the rate card, I am unable to spell out a
contract. The newspaper company is saying to the Federal Government: Here are our rates but the rates
for over 1,500 inches need amplification and this is set out in the contract form. Does the Federal
Government agree to pay a higher rate if it does not buy 1,500 inches within the specified period ? By
signing this document the Federal Information Officer merely agreed to the newspapers rates for such
advertising space as the Federal Government might thereafter require. Nothing in these documents
amounts to an offer or order from the Federal Government to buy advertising space and there is no
undertaking by the newspaper to give advertising space in its columns.
In Great Northern Ry Co v Witham ((1873), LR 9 CP 1, 29 LT 471, 22 WR 48, 12 Digest (Repl) 231,
1729) the Railway Company sued a contractor who had made a tender and refused to execute an order
from the Company pusuant thereto. It was held that the contractor had made a standing offer and each time
the Company gave an order it was an acceptance and formed a binding contract. The contractors offer was
revocable but, as long as it stood, he had to execute any order given by the Railway. The facts in the
present proceedings do not carry the petitioner even as far as Withams case (Great Northern Ry Co v
Witham (1873), LR 9 CP 1, 29 LT 471, 22 WR 48, 12 Digest (Repl) 231, 1729) for, in my view, there was no
tender of advertising space, no undertaking by the newspaper to publish if any order was given. The
present case more resembles the facts in Harvey v Facey ([1893] AC 552, 62 LJPC 127, 69 LT 504, 42 WR
129, 9 TLR 612, 1 R 428, PC, 12 Digest (Repl) 57, 314), where a would-be purchaser asked the owner his
lowest price; the owner said 900 and the purchaser purported to accept this as an offer. But it was held
that the owners statement of this lowest price was not an offer. Counsel for the petitioner submitted that
once the Federal Government sent its first order after 31 July the newspaper companys offer to publish was
irrevocable. The fallacy here is that in fact there was no undertaking to publish. Had the newspaper

company refused to execute any order after the first, it could not have been compelled to do so. A difficult
question might arise as to the rate applicable to the advertisements already published, but acceptance of an
order could not be construed as an unequivocal

181
undertaking to publish all orders up to 1,500 inches for the twelve months after 31 July 1958.
In my opinion, each request by the Federal Information Officer to publish an advertisement was a
separate offer and each publication was an acceptance of that offer. It is an elementary principle in the law
of contracts that acceptance is not effective until communicated and on the evidence before us the only
acceptance so communicated was the publication of the advertisement. It was so held on similar facts in
Tranton v Astor ((1917), 33 TLR 383, 22 Digest (Repl) 21, 31).
Two of the orders sent by the Federal Information Officer to the newspaper have been particularly relied
upon by the petitioner. The two insertions of the same advertisement made on 14 September and 21, 1958,
were published pursuant to one order, No 10 of 1958, and two insertions of another advertisement on 14
November and 16 were made pursuant to one order, No 13 of 1958. It was contended that the order for two
insertions of the same advertisement constituted a single offer and that by the publication of the first
insertion the newspaper accepted and undertook to publish the other insertion. Thus between the dates of
the first and second insertions the obligation of the newspaper was executory, and continuing.
In Pollock On Contracts (12th Edn) at p 30, it is stated:
Conduct which is relied on as constituting the acceptance of an offer must, no less than words
relied on for the purpose, be unambiguous and unconditional.
I am clearly of opinion that by publishing the first insertion on any one of these orders, say order No 10
of 1958, the newspaper had not unambiguously accepted the Governments offer to buy space for two
insertions. In fact, the newspaper company throughout the course of its business with the Federal
Information Officer seems to have avoided giving any undertaking whatever about publication of orders,
being at pains only to make clear its charges for such advertisements as were in fact published. True, the
newspaper published the second insertion; but I am unable to infer from this that it intended when it
published the first insertion to accept a legal obligation to publish the second insertion also.
I conclude, therefore, that the only contracts before us on this petition are contracts where acceptance
and performance by the newspaper company were simultaneous and resulted in no continuing obligation
except that of the Federal Government to pay for publication.
The question can now be considered whether these contracts were such as would disqualify the
respondent under Article 23 of the Constitution. The relevant part of this Article reads as follows:
A member of the House of Representatives shall also vacate his seat in the House....
(f) if he becomes a party to any contract with the Federal Government for or on account of the
public service or if any firm in which he is a partner, or any company of which he is a director or
manager, becomes a party to any such contract, or if he becomes a partner in a firm or a director or
manager of a company which is a party to any such contract:
Provided that, if in the circumstances it appears to the House of Representatives to be just so to
do, the House may exempt any member from vacating his seat under the provisions of this subparagraph, if such member, before becoming a party to such contract as aforesaid, or before or as
soon as practicable after becoming otherwise interested in such contract (whether as a partner in a
firm or as a director or manager of a company), discloses to the House the nature of such contract and
his interest, or the interest of such firm of company, therein...

182
It is conceded for the respondent that if the newspaper had become a party to a contract within the
meaning of that phrase in Article 23 (2) (f), then that contract was for or on account of the public service.
Counsel for the petitioner has submitted that the words of paragraph (f) are plain and that we should
adopt the legal meaning of the words any contract and hold that even where the contract to which the
newspaper company was a party was one where acceptance and performance were simultaneous, the
result must be to cause the respondent to vacate his seat.
On the other hand, counsel for the respondent have invited us to consider the object and intent of
paragraph (f) of Article 23 (2) and the mischief which that paragraph seeks to prevent. Let us consider this
object and intent.
The disqualification of a member of the Legislature who becomes a party to a contract for the public
service first appears, so far as I am aware, in the House of Commons (Disqualification) Act of 1782 [UK].
The preamble of that Act declared that it was an Act for securing the freedom and independence of
parliament. In MAYS PARLIAMENTARY PRACTICE (16th Edn) at p 215, a consideration of the Act of
1782 is prefaced with this observation:

Government contractors, who may be regarded as analogous to office-holders, being supposed to

be liable to the influence of their employersthe executive governmentand therefore open to one of
the objections against office-holding, are disqualified by statute.
I think it is reasonable to assume that the mischief aimed at by Article 23 (2) (f) is substantially the
same. The object is to ensure the independence of the Legislature from interference by the Executive; it is
not the object to prevent members of the Legislature from exercising improper influence on the Executive
on the contrarya major constitutional problem today is how the Legislature can retain a proper measure of
control over the increasing power of the Executive. It follows from this conclusion that it is not an object of
paragraph (f) to prevent the Executive being under an obligation to a member of the House; the object is to
prevent a member from being under an obligation to the Executive.
The Acting Attorney-General has submitted that paragraph (f) was aimed not only at a member of the
House who was under a continuing legal obligation to the Government but also at one who might be
improperly influenced by the prospect of a contract where acceptance and performance on his part would be
simultaneous. I think it is fanciful to suppose that paragraph (f) intends to prevent the influence of the
Executive on a member of the House during a period when a hope of a contract unsupported by legal
obligation is dangled before the member. The framers of constitutions are surely not so sanguine as to
attempt to deter any individual or body of persons from the gentle art of dangling hopes or to prevent hope
from springing eternally from human hearts.
Two cases have been relied on for the respondent in which it was decided that contracts within the
meaning of the Act of 1782 did not include contracts where the member of the House was not under an
obligation to the Executive and only the obligation of the Executive to pay remained undischarged. These
cases are Royse v Birley ((1869), LR 4 CP 296, sub nom Manchester Election Petition, Royse v Birley, 38
LJCP 203, 20 LT 786, 17 WR 827, 36 Digest (Repl) 379, 239) and Tranton v Astor ((1917), 33 TLR 383, 22
Digest (Repl) 21, 31). Counsel for the petitioner has sought to distinguish these decisions on the ground
that s 1 of the Act of 1782 speaks of the contracts which involve disqualification as being held or enjoyed
and this implies a continuing obligation. Undoubtedly, the judgments in those cases relied on the wording of
s 1 but, in my understanding of those judgments, it is plain that the learned judges who decided them
considered that the limits they placed on the kind of contract to which the Act applied accorded with the
objects and intent of the statute. In Royses (4), Willes J ((1869), LR 4 C P at pp 311-312) states:

183
Reading the first section by itself, with the light of the preamble, that this was an act for securing
the freedom and independence of parliament and finding that the specific provisions in the section
seem to point to the execution of a contract with the government, and finding also that the provision for
disqualification is limited to the time during which the person contracting should execute, hold, or
enjoy any such contract, agreement or commission, I think the enactment refers to the case of a man
having a contract under which he is to derive some future benefit from dealing with the government, in
respect of which they might control him; as, for instance, by directing their officers not to look too
closely to the sort of goods he sent in, or the like.
The facts in Tranton v Astor ((1917), 33 TLR 383, 22 Digest (Repl) 21, 31) are very similar to the present
case for they concerned advertisements published in the Observer. Orders were given and there was no
evidence of acceptance except insertion; the moment they were inserted the newspapers side of the
contract was executed. Low, J ((1917), 33 TLR at p 386), states:
The second point for the defence was that such transactions as were proved in this case were not
contracts, agreements, or commissions of a kind aimed at by these Acts of Parliament. It was argued
that every transaction which might in law be a contract could not be included, as, for instance, ordinary
sales or purchases across the counter. I will say at once that I think that the real and sufficient answer
to the claim of the plaintiff in this action is that even if a Government department acting directly does
give an order to a newspaper for the insertion of a Government advertisement in a particular issue of
the newspaper, and the newspaper accepts and inserts the advertisement, and that is all, such a
transaction is not a contract or agreement within the meaning of this legislation at all, and such casual
or transient transactions are not the kind of contracts covered by these statutes, but that what are
meant to be covered are contracts of a more permanent or continuing and lasting character, the
holding and enjoying of which might improperly influence the action both of legislators and the
Government.
So far in trying to interpret the words any contract in paragraph (f) of Article 23 (2) I have considered
the object and intent of that provision and the mischief aimed at. I now wish to consider the occasion on

which these words are used and the sense in which plain men would understand them in their context.
There is, I think, ample authority for this approach. I take the following passage from Crair On Statute Law
(5th Edn) at p 154:
As was said by Pollock B, in Grenfell v Inland Revenue Commissioners ((1876), 1 Ex D 242, 45
LJQB 465, 34 LT 426, 24 WR 582, 42 Digest 619, 198) ((1876), 1 ExD at p 248), if a statute contains
language which is capable of being construed in a popular sense, such a statute is not to be
construed according to the strict or technical meaning of the language contained in it, but is to be
construed in its popular sense, meaning, of course, by the words popular sense that sense which
people conversant with the subject-matter with which the statute is dealing would attribute to it.
In The Schiller (Cargo Ex) ((1877), 2 PD 145, 36 LT 714, 3 Asp MLC 439, CA, 42 Digest 619, 200) the
plaintiffs had rescued passengers and crew from a wreck but no cargo; later the defendants (owners of the
vessel) recovered some valuable cargo and the plaintiffs claimed in Admiralty against the cargo under the
Merchant Shipping Act, 1854 [UK], by way of salvage. If the word salvage were used in its technical sense
in the Act, there would be no jurisdiction in Admiralty to award salvage in rem out of the cargo where the
plaintiffs had saved life but no cargo. But the Court of Appeal upheld an award of salvage in rem. James LJ
((1877), 2 P D at p 161), states:
I base my decision on the words of the statute as they would be understood by plain men who
know nothing of the technical rule of the Court of 184 Admiralty, or of flotsam, lagan, and jetsam. The
legislature tells mariners that if they exert themselves to save life, they shall receive reward on the
principle of salvage, and to put a technical meaning on the words, so as to limit the operation of the
enactment, would be to keep the word of promise to the ear and break it to the hope.
Now the occasion on which the words any contract are used in paragraph (f) of Article 23 (2) is a
provision whereby a member of the House may be disqualified if he or his firm becomes a party to a contract
with the Federal Government. The member may escape from disqualification by disclosing his interest to
the House and asking its indulgence. In other words, the provision is punitive but a member may secure
exemption if, knowing that his transaction with the Government is such as to bring him within the ambit of
paragraph (f), he applies for exemption. Surely in these circumstances the words any contract should be
given the meaning which plain men (if one may without discourtesy so describe our legislators) conversant
with the subject-matter with which the statute is dealing would attribute to it. The plain man with whom we
are here concerned is a member of the House, an educated man conversant with the Constitution who could
readily appreciate that the subject of paragraph (f) was to preserve the members of the House from
improper pressure by the Executive. Surely an ordinary person, a member of the House, reading the
provisions of paragraph (f) would sayThis means that while a member of the House I must not be under a
contractual obligation to the Federal Government without obtaining the permission of the House. I think that
it would not occur to such person if he or his firm sold something to the Government so that he was its
creditor to consider that he had become a party to a contract which disqualified him.
Such, I think, is the popular sense which a person who is a member of the House and aware of the
need for proper relations between the House and the Executive would attribute to the words any contract in
the context of paragraph (f) of Article 23 (2). If the meaning of these words in the popular sense did not
accord with the object and intent of the provision where they are used, the argument for construing them in
the popular sense would not be so strong. But where the true object and intent accord with the popular
sense, then it would be against reason and justice to so construe them as to disqualify the respondent.
I, therefore, consider that in the circumstances set out in this petition and upon the admitted facts, the
respondent should not vacate his seat and that this court should so certify to the Speaker.
RENNIE J. Two questions for decision arise on the facts of this case. The first of these questions concerns
the nature of the relationship that was created between the Federal Government (hereinafter referred to as
the Government) and the Port of Spain Gazette (1955) Ltd (hereinafter referred to as the Company) and the
precise time when that relationship arose. The second question relates to the construction of Article 23 (2)
(f) of the Constitution.
Dealing with the first of these questions I must consider four submissions that were put forward on
behalf of the petitioner.
They are:
(1) That the documents of 2 July and 3* create a firm contract extending for a year and
provisionally for another yeara contract whereby the Company undertook to provide and to sell
advertising space to the Government and the Government agreed to take advertising space exceeding
1,500 inches.

(2) Assuming that the documents do not create an agreement between the

185
parties, then they show a continuing offer to provide advertising space so that the Government
could qualify for the minimum rate and that the continuing offer became irrevocable the moment the
first advertisement was tendered to the Company.
(3) Alternatively, that the Company has made an offer to the Government which is capable of being
revoked but which until it is revoked is capable of acceptance and gives the Government the means of
earning or qualifying for such advantageous rate for the advertisements that may be published in the
course of the year.
(4) That if the documents of 2 July and 3, * are meaningless from a contractual point of view, the
fact that they were written and accepted in the sense we know, coupled with the fact that the
advertising was done from 2 February and the fact that the letter of 20 February was written, show that
the Government expected to have and intended to have a series of contracts with the Company and
did have these contracts as they contemplated.
Whether the documents of 2 July and 3, * 1958, constitute a contract whereby the Company undertook
to provide and sell advertising space for a year to the Government and the Government undertook to take
such space to the extent of 1,500 inches must depend on their terms. Looking at the letter of 2 July one
notices that it is replying to a request for details about the advertisement rates for the Federal Government
and that it purports to answer that request by attaching what is described as a contract form. A request for
advertisement rates is not an offer to take space in a newspaper and it cannot be so construed. That being
so the letter of 2 July affords counsel for the petitioner no assistance in establishing such a contract. That
leaves for consideration the document of 3 July, which describes itself as an advertising contract. Nowhere
in this document can one find any obligation undertaken by the Company. In fact, the Companys name
does not even appear on the document. The fact that that document was sent to the Government by the
Company cannot be taken as an undertaking on its part to provide advertisement space if and when the
Government require such space. It was sent in reply to a request about advertisement rates and is no more
than details of the rates. Without an agreement on the part of the Company to provide advertisement space
no contract can be spelt out of the documents of 2 July and 3.
I turn now to the second and third submissions. I propose to deal with these two submissions together
because they turn on the question of whether the Company made an offer to the Government. The letter of
2 July together with the accompanying so-called advertising contract, does not, in my view, constitute an
offer to provide advertisement space. They do no more than inform the Government what the Companys
rates are-they are, in fact, an invitation for an offer. As in Harvey v Facey ([1893] AC 552, 62 LJPC 127, 69
LT 504, 42 WR 129, 9 TLR 612, 1 R 428, PC, 12 Digest (Repl) 57, 314), where the appellants telegraphed
Will you sell us BHP ? Telegraph lowest cash price and the respondents telegraphed in reply Lowest
price for BHP 900 and then the appellants telegraphed We agree to buy BHP for 900 asked by you.
Please send us your title-deeds in order that we may get early possession but received no reply, it was held
that there was no contract. The final telegram was not the acceptance of an offer to sell for none had been
made. It was itself an offer to buy the acceptance of which must be expressed and could not be implied.
The fourth submission seems concerned with the Governments expectations and intentions, but as I
am unable to see how such expectations or intentions can assist me in deciding this matter, I will pass on
without further ado to what seems to be the real point in the first question.

186
The agreed facts show that after 3 July the Government sent orders requesting the publication of
advertising matter to the Company and that the Company published such matter. Those facts in the light of
what I have already said concerning the documents of 2 July and 3 * show that, following on the invitation for
an offer, the Government sent orders and the Company accepted those orders. Each order from the
Government was, therefore, an offer to take advertising space and a contract was concluded on each
occasion on which the Company accepted and communicated its acceptance of the offer to the
Government. It is settled law that acceptance of an offer must be communicated to the offeror before there
can be a contract. Or, as it is sometimes put, mental or uncommunicated consent does not amount to
acceptance. This is the reason for the decision in Powell v Lee ((1908), 99 LT 284 72 JP 353, 24 TLR 606,
6 LGR 840, DC, 12 Digest (Repl) 72, 401), where the plaintiff was a candidate for the headmastership of a
school and the board of managers with whom the appointment lay passed a resolution selecting him for the
post. One of the managers acting in his individual capacity informed the plaintiff of what had occurred but
he received no other intimation. Subsequently, the resolution was rescinded and the court held that in the
absence of an authorised communication from the whole body of managers there was no completed
contract.

When then can it be said that a contract was entered into? From the agreed facts the only inference
one can come to is that acceptance of each offer was communicated to the Government by publication of
the advertisement and only then was there a contract.
This brings me to the second question for decision and I would frame that question in this way-Did the
Company become a party to a contract with the Government? To answer that question one must
necessarily construe the words become a party to a contract. The word become, said EVE, J, in Re
Williams Settlement ([1911] 1 Ch at p 450) when quoting Kindersley, V-C, in Archer v Kelly, in its usual and
proper acceptation imports a change of condition that is the entering into a new state or condition by a
change from some former state or condition. A party to a contract is one who is under a contractual
obligation. To become a party to a contract must, therefore, entail a change from a condition of freedom
from contractual obligation to a condition of being contractually bound. Was there such a change in the
present case in so far as the Company was concerned? I do not think so. I am unable to see any change
from the condition of freedom from contractual obligation. This is so because the very act that brought the
contract into being, namely, the publication of the advertisement, also performed the contract on the part of
the Company and thereby discharged it from the contract. There was, therefore, not a moment of time when
the Company was under a contractual obligation to the Government.
Attention was specifically drawn to orders Nos 10/58 and 13/58 on Schedule D to the agreed facts and
it was submitted that in the case of those orders the Company accepted one offer and undertook to provide
advertising space on two separate days in respect of each order. I am unable to say that that is the
inference one should come to from the information supplied in that schedule. One would require to see the
actual order and to construe its phrases before it can be said that the Company undertook an obligation to
publish a second advertisement by the mere fact that it published the advertisement a first time. To place
the court in a position where it must guess at the inference to be drawn from figures in a column is no way of
discharging the burden of proof that rests on the petitioner.

187
For these reasons I think the petition should be dismissed.
ARCHER J. This is a petition brought by the Clerk of the House of Representatives at the instance of the
House of Representatives under Part II of the Legislature (Appointment, Election and Membership
Controversies) Regulations, 1958, by means of which the question whether or not the respondent has
vacated his membership of the House of Representatives, to which he was elected, and in which he took his
seat on 18 April 1958, has been submitted for determination. The petitioner alleges that by reason of certain
business transactions between the Federal Government and a company of which the respondent was the
manager, the provisions of Article 23 (2) (f) of the Constitution of The West Indies have been infringed and
prays that it may be declared that the respondent has forfeited his seat.
Article 23 (2) (f) of the Constitution provides that a member of the House of Representatives shall
vacate his seat in the House if he becomes a party to any contract with the Federal Government for or on
account of the public service or if any firm in which he is a partner, or any company of which he is a director
or manager, becomes a party to any such contract, with the Federal Government for or on account of the
public service or if any firm in which he is a partner, or any company of which he is a director or manager,
becomes a party to any such contract, or if he becomes a partner in a firm or a director or manager of a
company which is a party to any such contract.
No evidence has been given in support of the petition but the matter has proceeded on the basis of an
agreed statement of admitted facts to which reference has been made in the judgments already delivered.
In order to determine whether the provision of the Constitution relied upon has any application to the
circumstances of the case and what that application is, the nature and extent of the relationship between the
Company and the Government must first be considered.
Counsel for the petitioner advanced four propositions. He submitted:
(1) That the letter of 2 July 1958, from the Company to the Federal Information Officer (Exhibit B 2)
together with its enclosures (Exhibits B 3 and B 4) * constituted an offer of a contract by the Company
which was accepted by the Government on 3 July 1958.
(2) That assuming that these documents did not create a binding contract, nevertheless a
continuing offer was made by the Company and became irrevocable as soon as the first advertisement
was tendered by the Government.
(3) That assuming that neither of these two propositions was sound, the Company made an offer
capable of being revoked but, until recalled, capable of acceptance by the Government and, if
accepted, affording the Government the opportunity of qualifying for advantageous rates.
(4) That assuming that the documents are meaningless from a contractual point of view, yet the
circumstance that they were written and acted upon coupled with the fact of publication of the

advertisements shows that a series of contracts was contemplated by the parties and that none of the
advertisements can, therefore, be read in isolation or be considered transient or casual.
It was contended in the first place that the letter of 20 February 1958 (Exhibit B 1) was a proposal by
the Government to which the Company replied by making an offer in its letter of 2 July 1958 (Exhibit B 2)
and its enclosures (Exhibits B 3 and B 4) * which offer the Government accepted on 3 July 1958, when the
Federal Information Officer signed and returned the advertising

188
contract (Exhibit B 3) to the Company. Alternatively, it was said that if there was no binding contract on
3 July 1958, the Federal Information Officers action constituted an offer by the Government which was
accepted by the Company when it dealt with the first advertisement submitted by the Government in reliance
upon the documents that had passed between them.
The letter of 20 February 1958, states that the Government may be interested in securing advertising
space in the Companys newspaper from time to time and seeks information as to the Companys rates and
an assurance that advertisements sent in by the Government for publication will be prominently displayed in
the newspaper. There is no indication that the Company ever replied to it. The letter of 2 July 1958 (Exhibit
B 2)* does not on its face appear to be such a reply: between 20 February 1958, and 2 July 1958,
advertisements were sent in by the Government and published by the Company and counsel for the
petitioner concedes that this letter suggests that it is a reply to other enquiries and not a direct answer to the
letter of 20 February 1958.
The letter of 20 February 1958, is exploratory. It does not contain an offer nor does it even, in my view,
contain a proposal, as counsel for the petitioner contended. Counsel for the respondent submitted, on the
authority of Harvey v Facey ([1893] AC 552, 62 LJPC 127, 69 LT 504, 42 WR 129, 9 TLR 612, 1 R 428, PC,
12 Digest (Repl) 57, 314), that the letter of 2 July 1958, could not be construed as the acceptance of an offer
contained in the letter of 20 February 1958, but this argument is, I think, based on a misapprehension as to
the contention put forward by counsel for the petitioner. I did not understand him to have urged that the
Government made an offer in its letter of 20 February 1958. If he had, I think that Harvey v Facey ([1893]
AC 552, 62 LJPC 127, 69 LT 504, 42 WR 129, 9 TLR 612, 1 R 428, PC, 12 Digest (Repl) 57, 314) would
have been a complete answer to his argument.
Counsel for the petitioner relied on Great Northern Ry Co v Witham ((1873), LR 9 CP 1, 29 LT 471, 22
WR 48, 12 Digest (Repl) 231, 1729) and Percival, Ltd v LCC Asylums & Mental Deficiency Committee
((1918), 87 LJKB 677, 82 JP 157, 16 LGR 367, 12 Digest (Repl) 702, 5367) to support his proposition that
the Companys offer was a continuing one which became irrevocable and conferred an option on the
Government. These cases were cases of tenders for the supply of goods in which the offer was to supply if
and when the offeree chose to give an order. A binding contract ensued each time the offeree gave an order
but the offeree was under no obligation to give orders and the offeror was free to retract his offer but bound
to execute any order placed by the offeree.
Counsel also prayed in aid a passage from Pollock On Contracts, 13th Edn, p 18, in which the
suggestion is put forward that acceptance of the offer of a reward by an act is complete as soon as the
offeree has made an unequivocal beginning of the performance requested. There are probably several
answers to this submission but it is sufficient to point out that there is no evidence in this case of any act on
the part of the Government which could be characterised as an unequivocal step taken towards qualifying
for reduced rates. Indeed, it is significant that during the whole period from 2 February 1958, to 11 January
1959, as the Schedule (Exhibit D) shows, the Government took only 259 column inches of advertising
space in the Companys newspaper.
Counsels third proposition repeats the contention that the Company was bound to accept
advertisements submitted by the Government. I can find nothing in the correspondence binding the
Company to provide and the Government to take advertising space, or obliging the Company to provide
advertising space if the Government so desired. I construe the documents as limiting the accordance to an
agreement between the parties as to the prices to be charged for advertisements submitted by the
Government and accepted by the Company and find it impossible to deduce more from them. The
Company did not engage itself to publish and was not saying, as counsel contends, If you give us an order
we will publish but rather If you give us an order and we publish our

189
charges will be as we have previously agreed. In this respect the Company was not in the same
position as the tenderer in Great Northern Ry Co v Witham ((1873), LR 9 CP 1, 29 LT 471, 22 WR 48, 12
Digest (Repl) 231, 1729) who had by an express offer undertaken to supply. In my judgment, the legal
relationship between the Company and the Government is to be determined on the footing of offer on each
occasion by the Government to take advertising space and acceptance by the Company of each offer.
Acceptance to be effective must have been communicated to the Government and I agree that acceptance

must be inferred from the fact of publication in the Companys newspaper, for there has been no admission
as to any other mode of acceptance.
Comparison of Article 23 (2) (f) of the Constitution with the House of Commons Disqualification Act of
1782 [UK], around which much of the argument revolved, reveals a marked dissimilarity in wording. In
Royse v Birley ((1869), LR 4 CP 296, sub nom Manchester Election Petition, Royse v Birley, 38 LJCP 203,
20 LT 786, 17 WR 827, 36 Digest (Repl) 379, 239), which was decided by the Court of Common Pleas on a
case stated, it was held that the Act did not apply where the contract had been executed at the material time
and only payment by the Government remained to be made. The court also expressed doubt that the Act
was intended to apply to casual over the counter sales where it was not apparent to the seller that the
articles were being purchased for the Government. The judgments turned on the wording of s 1 of the
statute and were concerned with the interpretation to be placed on the section in the light of particular
expressions used by the Legislature.
In Tranton v Astor ((1917), 33 TLR 383, 22 Digest (Repl) 21, 31), which was an action for penalties on
the ground that Astor had contracted to accept Government advertisements, Royse v Birley ((1869), LR 4
CP 296, sub nom Manchester Election Petition, Royse v Birley, 38 LJCP 203, 20 LT 786, 17 WR 827, 36
Digest (Repl) 379, 239) was followed and it was also observed that it was doubtful whether the 1782 Act
applied to casual or transient transactions, and that the Act was intended to cover contracts of a more
permanent or continuing and lasting character, the holding or enjoying of which might improperly influence
the action both of legislators and the Government.
The disqualifying paragraph of the Article with which we are concerned covers three situations, namely,
(a) where the member becomes a party to the offending contract, (b) where the firm or company with which
the member is connected does so, and (c) where the member becomes a partner or manager or director of
the firm or company which is a party to the disqualifying contract. It refers to any contract throughout its
provisions and I think that the same meaning must be given to that expression wherever it occurs. But the
expression when used in relation to a members becoming a partner, manager or director of a firm or
company which is a party to a contract cannot extend to a cash transaction between the firm or company
and the Government, and it would be a distortion of language to apply it to a contract wholly executed
except as to payment. In neither case could it be said that the firm or company is a party to the contract at
the material time: in the former case, acceptance and performance are contemporaneous and there can be
no question of the members joining the firm or company during the existence of the contract; in the latter
case it cannot reasonably be said that the firm or company is a party to a contract at the material time,
where the relationship is then merely that of debtor and creditor, though it had, until execution of the
contract, been such a party. I consider the language of the paragraph apt to designate only an executory
contract, whatever the intention of the authors of it and, in my view, the Order-in-Council must be so
construed. But I am unable to find any limitation of the categories of executory contract against which it
provides. There could be no history of abuses against which it was desirable to take measures which might
serve as a guide as to the scope of the provision and there is no indication in the Article as to the mischief at
which the provision is aimed. In the face of this complete absence of any expression of intention, and
having regard to the language used, which is clearly wide enough to embrace all executory contracts, there
is no ascertainable principle on which particular types of executory contracts can be excluded, whether it be
the ground of triviality

190
or transience or any other ground. The object of the House of Commons Disqualification Act of 1782 is
to be gathered from its preamble and, whatever corrupt practices, real or imagined, it was enacted to curb
and however illogically it operated, some restriction was placed upon the kind of forbidden contract which
was in contemplation by the Act of 1931 which confined disqualifying contracts to contracts for the furnishing
or providing of money to be remitted abroad or wares and merchandise to be used and employed in the
service of the public. There was the opportunity for the sponsors of Article 23 to specify the classes of
contract, if any, to which it was intended that paragraph (f) should not apply, or to define the bounds within
which a member was free to contract. They may not have succeeded in drawing up a satisfactory list of
prohibited contracts but they have not made any attempt to do so and it may well be that it was intended that
a rigid attitude towards disqualification should be adopted, and that there should be no relaxation of the rule
except under the watchful eye of the legislature, so that suspicion that members of the legislature are using
their positions to obtain favours from the Government should not at any time be engendered in the public
mind, that public opinion should not thereby be affronted. It is not unreasonable to suppose that is the
purpose of the proviso to Article 23 (2) (f) which empowers the House of Representatives to exempt a
member from disqualification or to restore the seat of a member vacated by reason of his interest in a
Government contract upon his making disclosure of such interest.
In paragraph 6 of the statement of admitted facts it is agreed that from 31 July 1958, to 24 January
1959, six advertisements for publication on the dates shown in Exhibit D* totalling 94 column inches were
submitted by the Federal Information Officer to the Company and published by the Company on the dates
requested. Although the statement speaks of advertisements it is clear from the letter of 6 October 1958

(Exhibit C) that orders are being referred to. The orders were not exhibited though it was accepted that
they were in writing but, as I understand the argument of counsel, nothing turned on the precise wording of
these orders and they were simple requests for advertising space on specific dates. The orders for
publication on single dates call for no comment: each such order was an offer by the Government to take
advertising space for the particular date and the only proof of its acceptance is the publication of the
advertisement on that date. There are, however, two orders for publication of an advertisement on two
specified dates in each case and it is agreed that publication was effected on those dates. For the
respondent it has been submitted that each of these orders resulted in a divisible contract, that there was a
contract to publish on 14 September 1958, the only evidence of which is publication on that date, and similar
contracts for 21 September 14 November and 16 November 1958, similarly evidenced by publication on
those dates.
Admittedly, the question whether a contract is entire or divisible frequently gives rise to difficulty, but the
question must depend upon the inference to be drawn from the circumstances. The problem is encountered
in those cases in which there has not been complete performance of an undertaking by one party to an
agreement and the other party claims to be entitled to be relieved from all his obligations under the
agreement. Familiar examples are cases of agreements for the delivery of goods by instalments and
building contracts involving the construction of several buildings, and a contract may be entire even though
one party to it who has not completed what he undertook to do may be allowed to exact payment for what he
has done. In this case there is no question of

191
part performance. The Government placed orders for publication of advertisements on specific dates
and the Company complied with those orders. It was under no obligation to execute any of the orders either
in whole or in part: in respect of each order it could have rejected it or entered into a contract to fill it. It
could also have decided to publish on one day only in the first instance without committing itself to publish
on the later date but, in my view, the Company would in that event have been making a counter-offer and
would not have been accepting the Governments offer. But it is irrelevant to consider in retrospect what
contract or contracts expediency might have dictated if the implications of the disqualifying provisions of
Article 23 (2) (f) of the Constitution had been appreciated, and the respondent had adverted to the possibility
of their penal effect upon his membership of the House of Representatives. What is pertinent in the events
that have happened is to ascertain what contract was in fact concluded between the Company and the
Government, and this can be done by drawing the proper inference from the avowed conduct of the
Company. The whole course of dealing between the Company and the Government reveals a pattern of
requests for advertising space for definite dates by the Government, and publication on those dates by the
Company. The order for publication on 14 September and 21 1958, was patently a single application for
advertising space for those two dates. It would, I think, be quite unrealistic to consider it as containing two
offers to take advertising space, and while publication is, in this case, the only proof of acceptance of
whatever offers the Government made to the Company, it is fallacious to say that from the fact of publication
of an advertisement on a particular date the conclusion that there was acceptance of an offer to take
advertising space on that date alone is inescapable. I have already observed that the Company could not,
in my view, consistently with the concept of contractual obligations, have made the order divisible by the
unilateral act of publishing on the first date and postponing its decision to publish on the later date without
reference to the Government, but even if it could have done so there is nothing whatever to suggest that it
did. The Company inserted the advertisements as requested; it nowhere appears that the parties in fact
treated the order as divisible, or that the Company considered the order as comprising two offers. It would
be far-fetched to suppose that it did, and I readily infer from all the circumstances that it made a single
contract for publication on 14 September and 21 1958, and a similar contract for publication on 14
November and 16 1958. These two contracts were evidenced by publication on 14 September 1958, and 14
November 1958, respectively, and were, therefore, executory. The respondent became the manager of the
Company on 23 August 1958, and he was the manager when the Company became a party to these two
contracts. In my judgment, his seat became vacant on 14 September 1958, on which date the Company
entered into the first of these contracts and I would have so certified to the Speaker of the House of
Representatives.
Petition dismissed.

192
(1959), 1 WIR 194

Mildred Richards v Nasena Alladeen

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION

HALLINAN CJ, RENNIE AND ARCHER JJ
16, 17, 18 MARCH, 13 APRIL 1959

Sale of land Registration of lis pendens Declaration on originating summons of ownership of moiety by
appellant Bona fide purchase for value without notice Onus of proof of notice Remedies of Creditors
Ordinance, Cap 6, No 2 [T], s 65 - Conveyancing and Law of Property Ordinance, Cap 27, No 12 [T], s 80
(1) (a).
Recovery of possession Land Plea of possession and equitable defence Effect of combined pleas on
onus of proof Order 22, r 20, of the RSCT [T] Order 21, r 21, of the RSC [T].
The respondent bought a parcel of land from the husband of the appellant and obtained a conveyance from
him on 25 February 1953. At 11 am on that day the appellant registered a lis pendens in respect of the land.
On 13 June 1956, a declaration that the appellant was the owner of a moiety of the land was made by a
judge of the Supreme Court of Trinidad and Tobago. In an action by the respondent for recovery of
possession, the respondent proved a legal title derived from the appellants husband, and the conveyance
from him with the date of its execution, but did not allege or prove that the execution took place before the
registration of the lis pendens. The appellant pleaded possession of the land with her husband and
ownership of a moiety of the land, but called no evidence. She further pleaded notice by the respondent of
her interest in the land, and relied on s 80 (1) (a) of the Conveyancing and Law of Property Ordinance, Cap
27, No 12 [T], which is in the same terms as s 3 of the Conveyancing Act, 1881 [UK]. The trial judge granted
the order for recovery of possession.
Held: (i) the respondent was a bona fide purchaser for value without notice.
(ii) (per Hallinan CJ, and Archer J) even if the burden of proving want of notice lay on the respondent she
had discharged it.
(iii) the respondent was not affected with notice by the registration of the lis pendens on the same day on
which the conveyance was executed.
(iv) where a lis pendens is registered under the provisions of the Remedies of Creditors Ordinance, Cap 6,
No 2 [T], on the same day as a conveyance to a purchaser is made, (per Hallinan CJ) it cannot be said that
the purchaser ought reasonably to have made enquiry and searched the register on the very day on which
the conveyance was executed; (per Rennie J) it cannot be said that the purchaser is guilty of gross or
culpable negligence in not obtaining the knowledge that it was registered; (per Archer J) it would be
unreasonable to require the purchaser to ensure up to the last moment before accepting the deed of
conveyance that no lis pendens in respect of the property he is buying has been registered.
Principle stated by Stirling J, in Bailey v Barnes (2) followed.
Appeal dismissed.
Cases referred to
Eyre v Dolphin (1813), 2 Ball & B 290, 20 Digest 327, 719
Bailey v Barnes [1894] 1 Ch 25, 63 LJ Ch 73, 69 LT 542, 42 WR 66, 38 Sol Jo 9, 7 R 9, CA, 20 Digest 302,
560
Ware v Egmont (Lord) (1854), 4 de GM & G 460, 3 Eq Rep 1, 24 LJ Ch 361, 24 LTOS 195, 1 Jur NS 97, 3
WR 48, 43 ER 586, LC, 20 Digest 317, 653
Abrath v North Eastern Ry Co (1883), 11 QBD 440, 52 LJQB 620, 49 LT 618, 47 JP 692, 32 WR 50, 15 Cox,
CC 354, CA, on appeal (1886), 11 App Cas 247, HL, 22 Digest (Repl) 42, 238

193
Danford v McAnulty (1883), 8 App Cas 456, 52 LJQB 652, 49 LT 207, 31 WR 817, HL, 42 Digest 783, 2130
General Accident, Fire & Life Assurance Corpn v Robertson [1909] AC 404, 79 LJCP 1, 25 TLR 685, sub
nom. General Accident, Fire & Life Assurance Co v Hunter, 101 LT 135, 53 Sol Jo 649, HL, 22 Digest
(Repl) 38, 182
John v Humphreys [1955] 1 All ER 793, 119 JP 309, 99 Sol Jo 222, 53 LGR 321, DC, 3rd Digest Supp
Hibbs v Ross (1866), LR 1 QB 534, 7 B & S 655, 35 LJQB 193, 15 LT 67, 30 JP 613, 12 Jur NS 812, 14 WR
914, 2 Mar LC 397, 22 Digest (Repl) 38, 180

Appeal
Appeal of Mildred Richards against a judgment and order of Blagden J, a judge of the Supreme Court of
Trinidad and Tobago, dated 23 December 1958, for recovery of possession of land sold by her husband to
the respondent, Nasena Alladeen. The facts are summarised in the headnote.
W J Alexander (instructed by MTI Julien) (for the appellant)
Malcolm Butt QC and Tajmool Hosein (instructed by T M Milne & Co) (for the respondent)
Hallinan CJ. The respondent, a married woman, bought the land, the subject-matter of this action, from one
Horace Richards, the husband of the defendant-appellant, and obtained a conveyance from him on 25
February 1953, which purports to transfer the whole legal and equitable interest in the land. The title of
Horace Richards derived from two deeds: the first made in 1915, whereby the vendors, Sangaurie and
Dukhanie, describing themselves as seised in fee simple in possession free from incumbrances conveyed
the property in dispute to one Elizabeth Richards; and secondly, by deed in 1944 Elizabeth Richards
conveyed the property to Horace Richards.
It would appear that on or before the date of the conveyance from Horace Richards to the plaintiffrespondent, his wife was claiming an undivided half share in the land in dispute. On the same day as the
conveyance to the respondent, that is, 25 February 1953, the appellant commenced proceedings against
her husband, Horace Richards, claiming this beneficial interest in the land; the suit terminated in 1956 by a
judgment in favour of the appellant whereby she was declared owner of one half share of the land in dispute.
On the same day as she commenced the proceedings, the appellant had registered a lis pendens.
It was submitted for the appellant both at the trial and on this appeal that the appellants interest in the
land is a legal and not a beneficial one. I think this contention is quite untenable. The conveyance of 1944
from Elizabeth Richards to Horace Richards purports to convey the whole legal and beneficial estate to
Horace Richards; and the half share to which the court has held the respondent to be entitled must be a
beneficial interest. The learned trial judge clearly stated the position when he said She (the appellant) was
in the position of a Cestui que trust and her husband, Horace Richards, was her trustee in respect of a half
share in the property.
I should like to state at once that, in my view, there is only one issue in the case brought by the
respondent against the appellant, namely, whether the respondent acquired title to the land in dispute
subject to the beneficial interest of the appellant, or whether as a bona fide purchaser for value without
notice she has acquired the land free of the appellants interest.
The record of proceedings, including the judgment of the learned trial judge, contains much discussion
on the appellants plea that she was, together with her husband, at all material times in possession of the
lands in dispute. Arguments were heard and discussed as to whether the appellant had pleaded
possession, whether she had given evidence of such possession, whether the respondent had admitted
such plea and whether the respondent had discharged

194
the burden of proof which lies on a plaintiff who is out of possession. As I see the facts in this case, it
must be admitted, even by the appellant, that the respondent has shown a good title to the land in dispute
subject to her claim to be the beneficial owner of an undivided half. It is her beneficial interest in one half
and that alone which the appellant can contest in the present suit. In the ordinary course of the pleadings
one would have expected the appellant in her defence to have merely stated her beneficial interest which
was undoubtedly acquired prior to the estate which the respondent acquired in 1953; but the appellant has
somewhat confused the issues by herself alleging in her statement of defence that the plaintiff at all times
material to this action knew that the defendant owned and/or claimed the said moiety and was in possession
therof. In my view, once the defendant-appellant had pleaded her prior equitable interest, it should be left to
the plaintiff-respondent to plead that she, the respondent, was a bona fide purchaser for value without
notice.
I entirely agree with the learned trial judge when he said that the most vital question in the whole case
is the question of notice. Apart from the documentary evidence, the only evidence given was that of the
respondent, who merely stated in direct evidence that I claim possession against the defendant of a parcel
of land I bought under Deed 1555/1953 from Horace Richards, and in cross-examination all she says is that
in this transaction she had left everything to her husband. The appellant did not give or call any evidence.
In these circumstances, it becomes very important to enquire on whom was the burden of proving that the
respondent took the conveyance of 1953 without notice of the appellants beneficial interest. Upon this
question the trial judge had this to say:
The onus was originally on the plaintiff to prove that she acquired a title and she discharged it by
showing she obtained the property by deed of conveyance executed on the very day, 25 February
1953. The onus then shifted to the defendant to show that she had a prior interest of which the plaintiff
had notice before execution of the deed.

I confess I have found difficulty in finding any specific authority in the cases after 1875 (ie after the
Judicature Acts) as to where the burden of proving want of notice lies.
It is clear on looking at Daniells Chancery Practice, 7th Edn, Vol I, at p 424, that before the Judicature
Acts, where a person had a legal estate he might be entitled to judgment at common law against the holder
of an equitable interest, and the holder of that interest had to take proceedings in Chancery to establish his
claim. The holder of a prior equity would, therefore, always be the plaintiff in Chancery and the purchaser of
an adverse title obtained after the prior equity of the plaintiff would have to establish by way of defence that
he was a bona fide purchaser for value without notice.
As I understand the position after 1875, where the holder of the legal estate is plaintiff (as is the
respondent in this case) he starts off, as it were, by asserting his title at common law. The defendantappellant should then plead her prior equity; the appellants position, although defendant of this suit,
corresponds to that of a plaintiff suing in Chancery before 1875. The reply of the plaintiff-respondent should
be : I am a bona fide purchaser for value without notice and this defeats your prior equity. But for a
passage from Daniells Chancery Practice, 7th Edn, which I shall presently cite, I should have thought that
the basic principle of equity applies, namely, that the beneficial interest of the defendant-appellant being
prior in time to the interest of the plaintiff-respondent must prevail, unless the plaintiff-respondent proves that
she is a bona fide purchaser for value without notice. I should have thought that this plea was an essential
part of the respondents case. In Phipson On Evidence, 9th Edn, at p 53, it is stated:

195
The rule is that where a given allegation, whether affirmative or negative, forms an essential part of
the plaintiffs case, the proof of such allegation rests on him.
But Daniell at p 494 has this statement:
In considering the question, what matters are to be proved in a cause, the first point to be
ascertained is, upon whom the burden of the proof lies. And here it may be laid down, as a general
proposition, that the point in issue is to be proved by the party who asserts the affirmative, according to
the maxim of the Civil Law: Ei incumbit probatio qui dicit, non qui negat. Accordingly, when a
defendant insists upon a purchase for a valuable consideration, without notice, the fact of the
defendant, or those under whom he claims, having had notice of the plaintiffs title must be proved by
the plaintiff.
The authority cited by Daniell is Eyre v Dolphin ((1813), 2 Ball & B 290, 20 Digest 327, 719) (2 Ball & B
at p 303). Unfortunately this report is only available to us here in the Revised Reports and does not include
p 303. However, I have come to the conclusion that in the circumstances of the present case, even if the
burden of proving want of notice lay on the respondent, it can fairly be said that she has discharged that
burden.
In the course of his address to the court on a preliminary objection before the respondents evidence
was called, counsel for the appellant said: We are not pressing factual knowledge in the plaintiff as an
essential factor in the case. I will keep away then from considerations of factual knowledge in the plaintiff,
and in the course of his judgment, the learned trial judge states:
At an early stage of this case I understand counsel as conceding that the plaintiff had not got
actual notice of the defendants rights and interests. The question therefore is did she have
constructive notice?
In these circumstances, a formal statement on oath by the respondent that she had no notice was not
necessary. However, counsel for the appellant contends that the respondent had had constructive notice,
and has relied on s 80 (1) (a) of the Conveyancing and Law of Property Ordinance, Cap 27, No 12 [T], which
is as follows:
A purchaser shall not be prejudicially affected by notice of any instrument, fact or thing unless(a) it is within his own knowledge, or would have come to his knowledge, if such enquiries and
inspections had been made as ought reasonably to have been made by him.
In this respect the law of Trinidad is similar to the law of England. It is contended for the appellant that had
the respondent made proper enquiry she would have had notice of the appellants prior equity in two ways:
first, by visiting the land and seeing the appellant in possession thereof with her husband, and secondly by
searching the register of lis pendens. I agree with the learned trial judge that it was reasonable for the

respondent to assume that the normal relations of husband and wife existed between the appellant and
Horace Richards and that she was residing on the land in dispute by right of her husbands possession.
The legal effect of registering a lis pendens is set out in s 65 of the Remedies of Creditors Ordinance,
Cap 6, No 2 [T] Section 65 begins as follows:
No lis pendens shall bind a purchaser or mortgagee without express notice thereof, unless and
until a memorandum or minute ... shall be left with the Registrar General....
For a purchaser to be affected by a notice of lis pendens he must, I think, have had reasonable time before
the conveyance to him is executed, of searching the

196
register of lis pendens. Where a lis pendens is registered on the same day as the conveyance to the
purchaser is made, I do not think it can be said that the purchaser ought reasonably to have made enquiry
and searched the register on the very day on which the conveyance was executed.
It was conceded at the trial that the respondent did not have actual notice of the appellants prior equity
and I do not think it can be said that she had constructive notice either. I consider, therefore, that the
respondent established her plea of being a bona fide purchaser for value without notice and, therefore, her
right must prevail over that of the appellant. I would dismiss this appeal with costs.
RENNIE J. The appellant is seeking to upset the judgment of Blagden J, by which it is adjudged that the
respondent do recover possession of certain premises at Tunapuna.
At the trial of the action documents of title to these premises going back to 1915, and including a
conveyance from the appellants husband dated 25 February 1953, were tendered in evidence by the
respondent. The appellant, on the other hand, alleged that she has been in possession of the premises with
her husband, and is the owner of one moiety therein. She tendered in evidence an office copy of the
registration of a lis pendens dated 25 February 1953, but gave no other evidence.
By her defence she admitted that her husband was in possession of the premises along with her, and
went on to explain her possession by setting up a claim to a moiety. That claim can only be an equitable
one since the full legal estate was conveyed to her husband by Elizabeth Richards by conveyance dated 15
September 1944.
Since the appellants husband was in possession of the premises with her when he conveyed whatever
interest he had therein to the respondent, the respondent must at least be entitled to possession of an
undivided half. That seems to me to be the effect of the appellants admission in her defence. That being
so, the question for decision seems to be whether the legal estate which the respondent acquired from the
appellants husband overrode the appellants equitable interest. It is settled law that it will if the legal estate
was acquired by a bona fide purchaser for value without notice of the equitable interest. There is no
suggestion in this case that the purchase was not bona fide and not for valuable consideration. As to the
notice of the appellants interest, the evidence is that the conveyance was executed on the day on which the
lis pendens was registered. The lis pendens was registered at 11 am, but there is no evidence as to the
time of the day the conveyance was executed. Proof of that time would be conclusive if it could be shown
that the conveyance was executed before 11 am-then there could be no question of notice whether actual or
constructive. If the execution took place after 11 am this must give rise to the questionwould the lis
pendens have come to the knowledge of the respondent if such enquiries and inspection had been made as
ought reasonably to have been made by her? This, in effect, is the provision of s 80 (1) of the
Conveyancing and Law of Property Ordinance, Cap 27, No 12 [T], and of s 3 of the Conveyancing Act of
1881 [UK]. With the time factor being of such importance in this case, but sadly neglected in the evidence, it
is necessary to find out on whom the burden of proving the facts from which the court may infer notice would
rest. I will deal with this question of the burden of proof at a later stage; for the moment I wish to return to
the question of constructive notice.
For the respondent to be affected with notice of the lis pendens the circumstances must be such that
the lis pendens would have come to her knowledge if such enquiries and inspections had been made as
ought reasonably to have been made by her. Ought here, said Lindley LJ, in Bailey v Barnes ([1894] 1 Ch
25, 63 LJ Ch 73, 69 LT 542, 42 WR 66, 38 Sol Jo 9, 7 R 9, CA, 20 Digest 302, 560)

197
([1894] 1 Ch at p 35), does not import a duty or obligation, for a purchaser need make no enquiry. The
expression ought reasonably must mean ought as a matter of prudence, having regard to what is usually
done by men of business under similar circumstances. This was said when dealing with the provisions of s
3 of the Conveyancing Act, 1881 [UK], which are identical with s 80 (1) of the Conveyancing and Law of
Property Ordinance [T]. On that same page of the report, Lindley LJ, quoted with approval a passage from
the speech of Lord Cranworth in Ware v Egmont (Lord) ((1854), 4 de GM & G 460, 3 Eq Rep 1, 24 LJ Ch
361, 24 LTOS 195, 1 Jur NS 97, 3 WR 48, 43 ER 586, LC, 20 Digest 317, 653), in which occurs the following
sentence:

The question when it is sought to affect a purchaser with constructive notice is not whether he had
the means of obtaining and might by prudent caution have obtained the knowledge in question, but
whether the not obtaining it was an act of gross or culpable negligence.
After quoting from the speech, he went on to say:
Gross or culpable negligence in this passage does not import any breach of a legal duty, for a
purchaser of property is under no legal obligation to investigate his vendors title. But in dealing with
real property, as in other matters of business, regard is had to the usual course of business, and a
purchaser who wilfully departs from it in order to avoid acquiring a knowledge of his vendors title is not
allowed to derive any advantage from his wilful ignorance of defects which would have come to his
knowledge if he had transacted his business in the ordinary way.
Where, as in the instant case, the conveyance was executed on the same day on which the lis pendens
was registered, can it be said that the purchaser was guilty of gross or culpable negligence in not obtaining
the knowledge that the lis pendens was registered? I think not. In these circumstances, I would say she
might by prudent caution have acquired the knowledge but she was not guilty of gross or culpable
negligence. That being so, the respondent would not be affected with notice of the lis pendens.
There remains for consideration the question of the burden of proof. A decision on this question, apart
from any other, is capable of determining the claims of the parties.
On the evidence it is quite possible that the conveyance was executed at a time when the question of
notice could not possibly arise. On whom then was the burden of proving the facts from which the court may
infer that the respondent was or was not affected with notice? Was the respondent to prove she was not so
affected, or was it on the appellant to prove that the respondent was affected with notice? I would say the
burden was on the appellant. It is the appellant who is setting up an equitable interestan interest which
would be overridden by the legal estate, unless the respondent had notice of that interest when she acquired
the legal estate. This position is, in fact, recognised by the appellant in her defence. It forms a part of her
case and she must prove it. With no evidence as to the time when the conveyance was executed it is
impossible to say that the respondent was affected with notice of the appellants equitable interest.
For these reasons, I would dismiss the appeal with costs.
ARCHER J. This is an appeal against the judgment in an action for recovery of possession of land, which
was decided in favour of the plaintiff-respondent. The plaintiff-respondent purchased the land in dispute
from the husband of the defendant-appellant and it was conveyed to her by deed dated 25 February 1953.
She has never had possession of the land and her claim against the defendant-appellant, who at the date of
the writ was in possession of it, is for possession and for damages for trespass or, in the alternative, mesne
profits.
The case was fought out almost entirely on the pleadings. Particular regard

198
has, therefore, to be paid to them and it is necessary to refer to the course of the proceedings in some
detail.
In paragraphs 1, 2 and 3 of the Statement of Claim the plaintiff-respondent pleaded three deeds through
which she traced her legal title, and in paragraph 4 she alleged a demand of possession of the premises
from the defendant-appellant and refusal by the defendant-appellant to give up possession.
In paragraph 1 of the defence, which was delivered on 11 November 1953, the defendant-appellant
pleaded that she had at all material times been in possession with her husband and that she was the owner
of one moiety in the property. In paragraph 2 she pleaded that she had taken out an originating summons
against him by which she had claimed a declaration or order as to her ownership and that she had
registered a lis pendens in respect of her claim. In paragraph 3 she alleged that the plaintiff-respondent at
all material times knew that she owned and/or claimed a moiety and was in possession of the land, and in
paragraph 4 she pleaded that the deed of 25 February 1953, did not affect her rights.
The plaintiff-respondents reply was delivered on 13 November 1953. In it she joined issue with the
defendant-appellant on her defence and (1) asserted that she was a stranger to the proceedings on the
originating summons, and (2) denied that the defendant-appellant owned or laid claim to a moiety in the land
or was in possession thereof.
On 1 December 1956, the plaintiff-respondent took out a summons for leave to deliver an amended
reply. The amendment sought to add to the reply a denial that the plaintiff-respondent at any material time
knew that the defendant-appellant either owned or claimed any interest in, or was in possession of, the
property, and the plea that she was estopped from alleging knowledge on the part of the plaintiff-respondent
of her alleged claim or interest. A consent order dated 6 December 1956, was made giving leave to amend
but it did not fix a time for delivery of the amended reply. The amended reply should, by reason of O 29, r 7,

of the Rules of the Supreme Court [T], have been delivered within fourteen days from the date of the order
but it was not delivered until 7 January 1957, when the order had, by virtue of the rule, already become a
nullity.
The action came on for trial before Blagden J, on 23 October 1958. On that same day the defendantappellants solicitor had addressed a letter to the plaintiff-respondents solicitor asking for particulars of that
portion of the proposed amended reply which raised the issue of estoppel and the plaintiff-respondents
solicitor had replied to that letter. After considerable preliminary argument before the trial judge with regard
to the invalidity of the consent order and the defendant-appellants right to the particulars, the plaintiffrespondent was permitted to deliver the amended reply forthwith and the defendant-appellant to formulate
her request for particulars, and the plaintiff-respondent was ordered to supply the particulars. The trial
proceeded meanwhile, and the request for particulars and the reply thereto were subsequently laid before
the court and filed. A declaration that the defendant-appellant was the owner of a moiety of the property had
been made on 13 June 1956, and judgment on the originating summons entered on 15 June 1956, and the
defence was now amended to include a statement to that effect. The plaintiff-respondent then gave brief
evidence and, after tendering the deeds on which she relied, closed her case. Counsel for the defence
made certain submissions and, without calling any evidence, closed the defendants case. The trial judge
based himself on the following propositions:
(1) that the defence was possession coupled with an interest;
(2) that the defendant-appellant had admitted the plaintiff-respondents title;

199
(3) that even if the defendant-appellants pleadings could be read as contesting the plaintiffrespondents legal title, the plaintiff-respondent had established a good legal title;
(4) that the parties enjoyed a common root of title and that the defendant-appellant was, therefore,
estopped from denying the plaintiff-respondents title;
(5) that it was for the defendant-appellant to prove the fact of possession at the material time, that
she had not proved it and that the plaintiff-respondent had not admitted it;
(6) that the onus of proof of the plaintiff-respondents knowledge of the defendant-appellants
possession was on the defendant-appellant and that the defendant-appellant having failed to prove
possession had, a fortiori, failed to establish that the plaintiff-respondent knew that she was in
possession;
(7) that assuming that the plaintiff-respondent knew that the defendant-appellant was in occupation
of the property, that that circumstance would not have constituted constructive notice of the defendantappellants equitable interest;
(8) that the onus of proof of the plaintiff-respondents knowledge of the lis pendens was on the
defendant-appellant and that she had not discharged the onus.
Counsel for the defendant-appellant has submitted:
(a) that the defence was twofold: possession, and possession based on an equitable right; and that
the defence of possession put in issue the whole of the plaintiff-respondents case;
(b) that the plaintiff-respondent could not rely on estoppel arising from the circumstance of a
common root of title because she had to succeed, if at all, on the strength of her own title and not upon
the weakness of the defendant-appellants;
(c) that the plaintiff-respondent had admitted the defendant-appellants possession in her statement
of claim but had denied it in her reply and had thereby committed a breach of the rule against
inconsistent pleading;
(d) that the burden of proof of want of knowledge of the defendant-appellants possession and of
the lis pendens was upon the plaintiff-respondent and that she had not proved want of knowledge.
The statement of claim contained all that a plaintiff in an action for recovery of possession who has never
had possession of the land is required to plead. The plaintiff-respondent set out the legal title on which she
founded her claim. The defendant-appellant could have pleaded merely that she was in possession and this
plea would have amounted to a denial of the whole of the plaintiff-respondents case and put the plaintiffrespondent to the proof of it. It would also have enabled the defendant-appellant to put forward any legal
(but not equitable) defence to the plaintiff-respondents claim. But the defendant-appellant did not confine
herself to a plea of possession alone. In paragraph 1 of her defence she pleaded possession and
ownership of a moiety in the property. By so doing she asserted an equitable right, for despite the
contention of her counsel, there can be no question that the judgment on the originating summons declared
it to be a legal one, and the burden of proving the equitable defence so set up was upon her. Technically,
her plea of ownership was not a plea in the alternative and her counsel in the court below stressed the
importance of the combination of possession and interest in what was a rolled up plea.

The pleadings put in issue the fact of possession and the plaintiff-respondents title. They also put in
issue the defendant-appellants equitable right. The defendant-appellant did not prove her allegation that
she was in possession at the material time, nor did the plaintiff-respondent admit that she was, and the

200
argument that there was a departure in pleading by the plaintiff-respondent is misconceived. All that the
plaintiff-respondent alleged was that after obtaining her deed she demanded possession from the
defendant-appellant who was then in possession: she did not admit that the defendant-appellant was in
possession at the time when she obtained her deed. But even if there had been proof of the fact of
possession on or before 25 February 1953, the plaintiff-respondent proved a legal title extending over a
period of thirty-eight years. It is unnecessary to determine whether if the plea of possession had stood alone
the plaintiff-respondent would have had to show a good title for forty years. Her title and the defendantappellants right had a common ancestor, namely, the legal estate conveyed in 1915 to the plaintiffrespondents predecessor in title which had vested in the defendant-appellants husband in 1944 and on
which her equitable right was dependent. However possible it may have been for her to have reprobated
the plaintiff-respondents title on a plea of possession, she relied on her composite plea and that plea, in so
far as it concerned her equitable right, obliged her to approbate her husbands prior legal title and, therefore,
the plaintiff-respondents legal title. I entertain no doubt that the defence of possession fails and I now turn
to the other defence.
The real issue between the parties was as to the plaintiff-respondents knowledge of the defendantappellants equitable interest. It appears from the record that the defendant-appellant expressly abandoned
her contention that the plaintiff-respondent had had actual notice of her right and relied only on constructive
notice. I agree with the trial judge that there is no precise allegation in the defence that the plaintiffrespondent acquired notice of this right by virtue of the registration of the lis pendens: nowhere in the
defence is it specifically asserted that the lis pendens was registered before the deed of 25 February 1953,
was executed, and that the plaintiff-respondent had notice thereby of the defendant-appellants interest, and
no application for amendment of the defence in order to plead such an allegation was made. Instead, there
was argument and counter-argument with regard to the burden of proof as to the time when the deed had
been executed: the plaintiff-respondent insisted that it was for the defendant-appellant to show that it had
been executed after registration of the lis pendens, and the defendant-appellant contended that the onus
was on the plaintiff-respondent to establish that it had been executed before the registration. The
defendant-appellant also relied on her allegation as to the plaintiff-respondents knowledge that she was in
occupation of the property by way of constructive notice.
For the reasons which will appear later I am of the view that the result must be the same, even on the
basis of an amendment of the defence in the sense debated, and I proceed to consider the matter on the
assumption of such an amendment, but it will be convenient to deal with this aspect of the case and with the
general question of constructive notice and onus of proof together.
It is evident from the pleadings that it was the defendant-appellant who set up that the plaintiffrespondent had knowledge of her equitable interest and that the plaintiff-respondent did not introduce the
issue of knowledge. The plaintiff-respondent had pleaded in her statement of claim, as she was entitled to
do, her right to possession based on her legal title. She had not pleaded that she was a bona fide purchaser
for value without notice. The defendant-appellant alleged notice in her defence and the plaintiff-respondent
then replied that she had had no notice. In that state of the pleadings where did the burden of proof lie? In
Abrath v North Eastern Ry Co ((1883), 11 QBD 440, 52 LJQB 620, 49 LT 618, 47 JP 692, 32 WR 50, 15
Cox, CC 354, CA, on appeal (1886), 11 App Cas 247, HL, 22 Digest (Repl) 42, 238), which was an action for
malicious prosecution, Bowen LJ, said ((1883), 52 LJQB at p 626):
The plaintiff in an action for malicious prosecution has got the burden all through of making out that
the circumstances of the original prosecution were such that the judge can see no reasonable or
probable cause. It is said that

201
in one sense that is an assertion of a negative, and we have been pressed with the proposition that
when a negative is to be made out the onus of proof shifts. But that is not so. If the assertion of a
negative is an essential part of the plaintiffs case, the proof of that assertion will still rest upon him....
Later on he said:
I think it is beyond all question true that wherever a person asserts affirmatively and it becomes
necessary to his case to prove that a certain state of facts does not exist, or that a particular thing is
insufficient for a particular purpose, that is a positive assertion which the party who makes it is bound
to prove.

A positive averment cannot be converted into a negative averment, or vice versa, for the purpose of shifting
the burden of proof, but what the court looks at is the substance of the allegation in whatever form it is
worded.
The allegations of constructive notice are in substance (1) that the plaintiff-respondent made no
enquiries, (2) that the lis pendens was registered before the deed of 25 February 1953, was executed. The
case put for the defendant-appellant is (1) that there is no evidence that the plaintiff-respondent inspected
the property, that if she had she would have discovered that the defendant-appellant was in control of it and
that further enquiry would have elicited the information that she had an equitable interest in it; (2) that the
plaintiff-respondent has not proved that her deed was executed before the lis pendens was registered. I
take the view that the burden of proof of both allegations made by the defendant-appellant was upon her,
however they may be twisted, and in so far as proof was necessary to her defence she has not established
it. This is the conclusion at which I arrive from a consideration of the matter purely from the point of view of
the pleadings, but I think that the same result follows from another point of view.
Order 22, r 20, of the Rules of the Supreme Court [T] required the defendant-appellant to state and
prove her equitable defence. The application of the corresponding United Kingdom rule and its effect upon
the rights of a defendant was considered in Danford v McAnulty ((1883), 8 App Cas 456, 52 LJQB 652, 49
LT 207, 31 WR 817, HL, 42 Digest 783, 2130). Lord Blackburn ((1883) 8 App Cas at p 462) said:
For a long time an action for the recovery of land at law was brought by ejectment, and it was so
established as to be trite lawa commonplace expression of lawthat in ejectment, where a person
was in possession those who sought to turn him out were to recover upon the strength of their own
title; and consequently possession was at law a good defence against anyone, and those who sought
to turn the man in possession out must show a superior legal title to his. If, however, they did shew
that, still if the person who was in possession could shew that although they had shewn a superior
legal title to the possession, yet he had an equitable ground for saying that they should not turn him
out, he, as the law stood, was obliged to go to a Court of Equity, and as plaintiff there, as the actor (to
use a civil law expression), to make out that there was a sufficient reason for a Court of Equity to
interfere, and to prevent his being turned out of possession, on this equitable ground.
That being the then state of the law, when those who had to frame the new rules in the Schedule of
the Act came to this question, they had to consider what should be done with regard to it; I think that if
the object was (which I can myself have very little doubt was the object) to say that in actions for the
recovery of land the former state of pleading and the former mode of proceeding should remain
unaltered, the words used in these rules express that intention.

202
He then quoted the relevant rule and continued:
As I have already pointed out, that was exactly the existing state of the law. If he meant to set up
such an equitable ground he had to shew it in order to get the interposition of a Court of Equity.
It is to be observed that the last sentence of the rule speaks of reliance upon a ground of defence which a
defendant can prove and not merely upon one that he sets up.
Lord O Hagan in the same case at p 460 said:
We have to consider the state of the law at the time, and the object of the change, if a change was
made. From time out of mind it was established that a plaintiff in ejectment must recover upon the
strength of his own title, and that it was not necessary to go into anything on the part of the defendant,
who might put him at arms length and require him to state why he was there at all. Now what was the
object of the change? Looking to what was said in the Court below, it was not a change in the lawit
was a change in practice, necessitated apparently by the incursion of equity upon the old domain of
law; and that must be taken into account.
Lord Fitzgerald at p 464 said:
My Lords, the 19th Order is headed Pleading Generally, and seems to have been intended to
regulate the then new system of pleading, but not to take away or lessen pre-existing rights.
Further on he said:
It is not necessary to involve ourselves in the consideration of the old action of ejectment as it
stood prior to the Common Law Procedure Acts [UK], or to present any explanation of that fictitious
proceeding invented for the more easy trial of a right to the possession of land than by real action. The

position of the real plaintiff in that abrogated form of proceeding was, that he could only succeed by
establishing his right of property and his right of entry, and then, and not until then, was the defendant
called on to answer, and he might rely on any case which shewed that the plaintiffs right of entry had
been barred. The Common Law Procedure Act [UK] abolished the fictitious proceeding, and gave in
its place a real summons directed to the parties in possession, calling on them to come in and defend
their possession if they could. The principle of the proceeding and the rights of the parties remained
otherwise wholly unaffected. The plaintiff could succeed only on the strength of his own title, and could
not found his claim on the weakness of the defendants, for the law respected possession and deemed
it lawful possession until some claimant established in proof that he had a title to the land and a right of
entry to oust the defendant. The party who sought to change the possession should first shew a legal
title to it in himself.
He then summarised the 15th rule of Order 19 and continued:
The obvious intention of this exceptional rule, if we are to construe it by its own light alone, seems
to be to leave the defendant in an action for the recovery of land in the same position substantially as
he was before the Judicature Act and Rules, that is to say, entitled to rely on his possession as a
sufficient answer until the plaintiff had proved his title, and then enabling the defendant to rely on any
defence he could prove though he had not pleaded it.
The defendant-appellants position then was that O 22, r 20, did not relieve her of the burden of proof of
her equitable right, albeit she could do so in the same court and in the same proceedings in which she was a
defendant. In

203
proceedings against her husband it would have been sufficient to set up that she had an equitable
interest, but as against the plaintiff-respondent it was necessary to shew that the plaintiff-respondent took
the legal estate in the land subject to that interest, for the legal estate defeated that interest unless the
plaintiff-respondent had had notice of it. Constructive notice is a doctrine unknown to common law and she
could not succeed against the plaintiff-respondent unless she pleaded and proved, in addition to her interest,
knowledge of that interest. Both elements were essential to constitute her defence and the onus of proof of
both of them lay upon her. Not only was there no allegation that the lis pendens was registered before the
deed of 25 February 1953, was executed, but no attempt was made to prove that that had been so or that
the plaintiff-respondent had before she obtained her deed been in possession of information which should
have put her on her guard. For this additional reason, therefore, I am clearly of the view that the burden of
proof of constructive notice was on the defendant-appellant and that that burden was not discharged.
Counsel for the defendant-appellant has submitted that even if the onus of proof of constructive notice
was upon the defendant-appellant yet, in so far as knowledge of registration of the lis pendens is concerned,
the time when the deed of 25 February 1953, was executed is a fact peculiarly within the knowledge of the
plaintiff-respondent and proof of that fact is, therefore, the responsibility of the plaintiff-respondent. He relied
on General Accident, Fire & Life Assurance Corpn v Robertson v Robertson ([1909] AC 404, 79 LJCP 1, 25
TLR 685, sub nom General Accident, Fire & Life Assurance Co v Hunter, 101 LT 135, 53 Sol Jo 649, HL, 22
Digest (Repl) 38, 182) and John v Humphreys ([1955] 1 All ER 793, 119 JP 309, 99 Sol Jo 222, 53 LGR 321,
DC, 3rd Digest Supp), and said that the test was whether one party was more likely to know about the
transaction than anybody else. In Abrath v North Eastern Ry Co ((1883), 11 QBD 440, 52 LJQB 620, 49 LT
618, 47 JP 692, 32 WR 50, 15 Cox, CC 354, CA, on appeal (1886), 11 App Cas 247, HL, 22 Digest (Repl)
42, 238), to which I have already referred, Bowen LJ, said:
It is said that there is an exception in the case where the facts lie peculiarly within the knowledge of
one of the parties. Sir Hardinge Giffard does not go the length of saying that in all those cases the
onus shifts, and that the party within whose knowledge the matter peculiarly lies is bound to prove it. I
do not think that such a proposition could be maintained, and I think that the exceptions which may be
supposed to exist in the class of cases with regard to the game laws are very special, and might be
shewn to exist upon their own peculiar grounds.
Counsel for the plaintiff-respondent referred us to the judgment of Mellor J, in Hibbs v Ross ((1866), LR
1 QB 534, 7 B & S 655, 35 LJQB 193, 15 LT 67, 30 JP 613, 12 Jur NS 812, 14 WR 914, 2 Mar LC 397, 22
Digest (Repl) 38, 180) and submitted that the information as to the precise hour at which the deed had been
executed was as available to the defendant-appellant as it was to the plaintiff-respondent. In Hibbs v Ross
((1866), LR 1 QB 534, 7 B & S 655, 35 LJQB 193, 15 LT 67, 30 JP 613, 12 Jur NS 812, 14 WR 914, 2 Mar
LC 397, 22 Digest (Repl) 38, 180), Mellor J, said:

There exists an exception to the general rule that a party who alleges a matter must prove it, in
cases in which the subject-matter of the allegation lies peculiarly within the knowledge of one of the
parties. In this case there is no peculiar knowledge on the part of the defendant within the meaning of
that maxim. In one sense, in almost every case the defendant has peculiar knowledge affecting his
relation to the act complained of, but that is not the knowledge referred to. Here the shipper could
have proved by whom he was appointed, and so have laid a good foundation for the plaintiffs case, if
appointed by the defendant. Why should the burden of proof shift in such a state of things in order to
compel a defendant to disprove that which was incumbent upon the plaintiff to prove?
In General Accident, Fire & Life Assurance Corpn v Robertson ([1909] AC 404, 79 LJCP 1, 25 TLR 685,
sub nom General Accident, Fire & Life Assurance Co v Hunter, 101 LT 135, 53 Sol Jo 649, HL, 22 Digest
(Repl) 38, 182), the corporation had exclusive control of the machinery for the recording of the names of
persons insured with them against accidents; in the cases in which, apart from statutory provision, the onus
has been cast upon a defendant to prove lawful authority to do an act, it is not unfair to assume that the
defendant knows whether or not he has the particular licence which gives him the required

204
authority, but no such assumption of knowledge can be made in this case, even if there is force in the
contention of counsel for the defendant-appellant as to the test to be applied. Whether or not a fact is
peculiarly within the knowledge of one party must depend on the particular circumstances. In this case the
evidence of the plaintiff-respondent was that her husband bought the land for her and that she had not done
anything personally in the matter. There was no other evidence. Proof concerning the execution of the
deed could, therefore, only be supplied by the witnesses to the execution of the deed or other persons
present at its signing, and the opportunities of knowledge of both parties were in consequence equal and no
question of peculiar knowledge arises.
Finally, I consider the matter on the supposition that the onus was upon the plaintiff-respondent to prove
that she did not have constructive notice. The lis pendens was registered at 11 am on 25 February 1953.
The enquiries which a bona fide purchaser for value is required to make are such as would occur to a
prudent purchaser. Section 65 of the Remedies of Creditors Ordinance [T] was certainly intended to be for
the protection of persons having claims to property, but it cannot, in my view, be interpreted in such a way as
to entrap the unwary. It would, I think, be unreasonable to require a purchaser to ensure up to the last
moment before accepting a deed of conveyance that no lis pendens in respect of the property he is buying
has been registered. There is no evidence in this case that the plaintiff-respondent made any enquiry about
a lis pendens but, even if she had, she might not despite her caution, have obtained any knowledge of it
even if it was registered before the deed was executed, because of the short interval between its registration
and the execution of the deed. It cannot, therefore, be said that if the plaintiff-respondent had acted
prudently she must have learned that a lis pendens had been registered and therefore had constructive
notice of it.
There is likewise no evidence that the plaintiff-respondent inspected the property or made any enquiries
concerning the defendant-appellant but even if she had, no such conduct could reasonably have elicited
more than the information that the wife of the vendor of the property was in occupation of it, and this would
have served no warning upon the defendant-appellant of an adverse interest. In fact, the defendantappellant said that she did not visit the property at any time during February 1953, and there was no
contradiction of her evidence.
In Ware v Egmont (Lord) ((1854), 4 de GM & G 460, 3 Eq Rep 1, 24 LJ Ch 361, 24 LTOS 195, 1 Jur NS
97, 3 WR 48, 43 ER 586, LC, 20 Digest 317, 653), which was referred to in Bailey v Barnes ([1894] 1 Ch 25,
63 LJ Ch 73, 69 LT 542, 42 WR 66, 38 Sol Jo 9, 7 R 9, CA, 20 Digest 302, 560), Lord Cranworth said:
Where a person has actual notice of any matter or fact, there can be no danger of doing injustice if
he is held to be bound by all the consequences of that which he knows to exist. But where he has not
actual notice, he ought not to be treated as if he had notice, unless the circumstances are such as
enable the Court to say, not only that he might have acquired, but also, that he ought to have acquired,
the notice with which it is sought to affect himthat he would have acquired it but for his gross
negligence in the conduct of the business in question. The question when it is sought to affect a
purchaser with constructive notice, is not whether he had the means of obtaining, and might by
prudent caution have obtained, the knowledge in question, but whether the not obtaining it was an act
of gross or culpable negligence.
This passage was quoted with approval in Bailey v Barnes ([1894] 1 Ch 25, 63 LJ Ch 73, 69 LT 542, 42 WR
66, 38 Sol Jo 9, 7 R 9, CA, 20 Digest 302, 560), where Lindley LJ, said ([1894] 1 Ch at p 34):

In Ware v Egmont (Lord) ((1854), 4 de GM & G 460, 3 Eq Rep 1, 24 LJ Ch 361, 24 LTOS 195, 1
Jur NS 97, 3 WR 48, 43 ER 586, LC, 20 Digest 317, 653), Lord Cranworth stated the law on this
subject in language which has always been accepted as correct.
At page 35 he said:

205
The Conveyancing Act, 1881 [UK], really does no more than state the law as it was before, but its
negative form shews that a restriction rather than an extension of the doctrine of notice was intended
by the Legislature.
Section 80 (1) (a) of the Conveyancing and Law of Property Ordinance, Cap 27, No 12 [T], is in the same
terms as s 3 (1) of that Act.
I come to the conclusion, therefore, that even if the plaintiff-respondent had to prove that she had had
no constructive notice, the circumstances are such as to show that she discharged that burden of proof.
In my judgment, the appeal fails and should be dismissed with costs.
Appeal dismissed.

(1959), 1 WIR 206

Iris Gaskill v Pillar Antonio Alcala And Valeria Ortiz Alcala

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
16, 18, 19 MARCH, 13 APRIL 1959

Sale of land Payment of purchase money Conflicting descriptions of parcel in receipt for payment
Reference to approximate area and to boundaries in receipt Area described by boundaries exceeding area
estimated Death of vendor before execution of conveyance Whether larger area sold.
Specific Performance Sale of land Payment in full but conveyance of parcel not executed Portion of
land sold before date of writ Order directing conveyance of whole parcel set aside.
On 11 August 1943, CT sold a parcel of land to the respondents and received payment in full. He issued a
receipt for the purchase money in which the land was described as comprising one and a half lots more or
less, with a further description of its boundaries. The latter description embraced about three lots of land.
CT died on 12 August 1943, without having executed a conveyance of the land. The respondent, his
daughter, who became the administratrix of his estate in December 1944, refused, despite repeated
demands by the male respondent, to convey the land described by boundaries, contending that CT had sold
one and a half lots of land and that the boundaries had been mis-described in the receipt. In 1949 she sold
a portion of the land to NE In an action by the respondents for specific performance of the contract of sale
the appellant was ordered to convey the land as described by boundaries.
Held: (i) in the light of the evidence the description by boundaries should prevail. Dicta in Cowen v Truefitt,
Ltd ([1899] 2 Ch 309, 68 LJ Ch 563, 81 LT 104, 47 WR 661, 43 Sol Jo 622, CA, 44 Digest 907, 7668)
applied.
(ii) the appellant having disposed of a portion of the land before the action was brought, the order decreeing
specific performance should be set aside and the case remitted
(a) for trial of the issue as to whether or not NE held as trustee for the respondents, the respondents to be at
liberty to apply to the court below to join NE as a defendant for the purpose of such trial and
(b) for assessment of damages for breach of the agreement or for an order for specific performance of the
agreement with respect to the land not disposed of, and assessment of damages for failure to convey the
land sold to NE, if no such application be made or having been made, be refused.
Appeal allowed; case remitted.

206
Editorial Note: As to boundaries fixed by acts of the parties, see 3 Halsburys Laws, 3rd Edn, pp 355-357,
paras 673-675; and for cases on the subject, see 17 Digest (Repl) 381-382, Nos 18641868.
As to description of the property sold, see 11 Halsburys Laws, 3rd Edn, pp 424-426, paras 685-687; and for
cases on the subject, see 17 Digest (Repl) 286-293, Nos 929-979, and 381-382, Nos 1864-1868.
Cases referred to
Hardwick v Hardwick (1873), LR 16 Eq 168, 42 LJ Ch 636, 21 WR 719, LC, 44 Digest 638, 4716
Cowen v Truefitt, Ltd [1899] 2 Ch 309, 68 LJ Ch 563, 81 LT 104, 47 WR 661, 43 Sol Jo 622, CA, 44 Digest
907, 7668
Llewellyn v Jersey (Earl) (1843), 11 M & W 183, 12 LJ Ex 243, 152 ER 767, 17 Digest (Repl) 286, 931
Appeal
Appeal of Iris Gaskill, administratrix of the estate of Cipriani Thomas, against a judgment and order of
Watkin-Williams J, a judge of the Supreme Court of Trinidad and Tobago, dated 25 June 1958, for specific
performance of a contract for the sale of land made by Cipriani Thomas on 11 August 1943. The facts are
summarised in the headnote.
Hudson Phillips (instructed by C A Roach) for the defendant-appellant
Harold Hutson (instructed by E Lai Fook) for the plaintiffs-respondents
HALLINAN CJ. The defendant-appellant is the daughter of Cipriani Thomas who owned the land in dispute
in the township of St Joseph. The male plaintiff-respondent was formerly a ward officer at St Joseph and a
friend of Mr Thomas. He stated in evidence:
Thomas told me at end 1941 or beginning 1942, he wanted to divide and sell some of his land and
asked whether I would be interested in a piece. I told him I should be interested in the southern part.
He said he could not sell. He had committed himself to giving it to his daughter, Iris Gaskill.
A glance at the plan of Mr Thomass land shows that the southern part consists of a triangle comprising
about 14,500 sq ft bounded on the western side by a reservoir, on the eastern side by Caiman Road and on
the south by the land of Mr Gransaull. On this plan the triangle is divided into two lots by a pipe-line, the
northern lot (No 14) of 7,700 sq ft and the southern lot (No 15) 6,734 sq ft.
Later Mr Thomas informed the male respondent that he would sell the land. On 11 August 1943, the
respondents paid Mr Thomas $90.00 and received the following:
Exhibit 1
MW
10/6/58
St Joseph,
11th August 1943.
Received From Mr Pilar Antonio Alcala And Mrs Ortiz Valeria Alcala the sum of Ninety Dollars,
being payment in full for a parcel of land comprising one and a half lots more or less, situate at Caiman
Road in the Town of St Joseph, and bounded on the North by Caiman Road, on the South by J R
Gransaull formerly Deehal, on the East by JR Gransaull formerly Deehal and on the West by Central
Water Board Reservoir and J R Gransaull.
$90.00
(Sgd) Cipriani Thomas
Witness to
Signature and payment
(Sgd) Iris Thomas.
4c

207
Mr Thomas died the day after the receipt was given.
The essence of the dispute lies in the wording of this receipt. The appellant contends that the property
sold thereby only includes lot No 14 north of the pipe-line which would contain approximately 1 lots. A lot
is usually reckoned to be 100 ft x 50 ft, that is 5,000 sq ft The respondents, however, claim that they bought

the whole of the southern part of Mr Thomass land, that is, plots 14 and 15 on the plan and that the
description of the boundaries on the receipt includes both plots.
In December 1944, the appellant obtained Letters of Administration with Will annexed to the estate of
Mr Thomas. The male respondent requested her to transfer the land according to the boundaries on the
receipt; the appellant refused saying he was only entitled to plot 14 containing approximately 1 lots.
After considerable correspondence, the respondents began these proceedings in July 1947, claiming
specific performance. In 1949 the appellant by deed transferred plot 15 to one Norman England; at that time
he admits he knew that the proceedings in this case were pending but he alleges that he bought the land in
February 1944, although he did not go into possession until the date of the deed.
The trial judge found for the plaintiffs-respondents and made an order for specific performance.
Counsel for the appellant has contended that applying the rule of interpretation known as falsa
demonstratio we should accept the words on the receipt of 11 August 1943, a parcel of land comprising
one and a half lots more or less, situate at Caiman Road in the Town of St Joseph and reject the description
of the boundaries which follows as false.
This is not a case where there is a description sufficient to describe the land properly and another which
is not true; as for example, where a sufficient description is followed by the words now in the occupation of
A when the house is, in fact, in the occupation of B. In the present case either description might possibly be
truethe description by area and locality or the description by boundaries, but both cannot be true. Formerly
the earlier words of the description prevailed but now, to use the words of Lord Selborne LC, in Hardwick v
Hardwick ((1873), LR 16 Eq 168, 42 LJ Ch 636, 21 WR 719, LC, 44 Digest 638, 4716) (LR 16 Eq at p 175):
The whole thing must be looked at fairly in order to see what are the leading words of description,
and what is the subordinate matter, and for this purpose evidence of extrinsic facts may be regarded.
The error in the receipt must be due either to common mistake: both Mr Thomas and the male
respondent intended that the land as described by boundaries should pass and they were both mistaken as
to its area; or to mutual mistake: that Mr Thomas only intended to sell one and a half lots and the male
respondent thought he was buying all the land within the boundaries as described in the receipt. There was
no unilateral mistake: if Mr Thomas intended to sell only one and a half lots, there is no evidence that the
male respondent knew of Mr Thomass mistake. If there was a common mistake then the respondents must
succeed for both the male respondent and Mr Thomas mistook the area and that part of the description
must, therefore, be rejected. Such were the facts in Cowen v Truefitt, Ltd ([1899] 2 Ch 309, 68 LJ Ch 563,
81 LT 104, 47 WR 661, 43 Sol Jo 622, CA, 44 Digest 907, 7668). If there was a mutual mistake, then to
state the matter as it is put in Cheshire And Fifoot, 4th Edn at p 189, the court has to decide whether a
sensible third party would take the agreement to mean what A understood it to mean or what B understood it
to mean or whether indeed any meaning can be attributed to it at all. In the present case if one can
ascertain what were the leading words of the description then the others must be rejected and the
agreement has a meaning. I conclude that whether the matter is approached from the aspect of mistake or

208
from that of the interpretation of instruments, the problem is the same: to find the leading words.
It has been urged for the appellant that it would be against the sense of the contract that the parties
intended that a parcel of land of nearly 3 lots should pass when only a lot and a half is mentioned; that the
purchase price of $90.00 is very low for an area of 3 lots in a suburban locality; and that a lot and a half
could naturally be found in the northern part of the land included in the boundaries, which northern part was
well defined by the pipe-line which divided the land north and south.
Counsel for the appellant also referred to circumstances which might serve to establish undue
influence, such as the education and standing of the male respondent, the weak state of health of Mr
Thomas when the receipt was made and the fact that the male respondent himself wrote the receipt. But
undue influence was not pleaded as a defence and is not at issue. One must bear in mind, however, that
the respondents claim is against the estate of a deceased person and a court determining such claim must
examine it most carefully as the deceased is not here to defend his rights.
Against the appellant are the considerations that the land in dispute is a small area which in 1941 and
1943 was in bush. The plan in evidence was not made until 1949. It would be much easier for the parties to
make a mistake about the area in these circumstances than about the boundaries. The male respondent
had told Mr Thomas that he wanted the southern part of the land and the land which he now claims might
fairly be so described. Moreover, the appellant walked around the land with the male respondent and if the
pipe-line was to have been the boundary on the southern side mention of it would surely have been made in
the description of boundaries contained in the receipt. Little reliance can be placed on the argument as to
under-value for it is a matter of common knowledge to-day how rapidly the price of suburban land can go up.
The trial judge considered the male respondent a reliable witness. As for the evidence of the appellant, the
trial judge had this to say:

According to the defendant, she went together with the plaintiff and one Raymond Joseph to the
land on the date of the transaction and the plaintiff took measurements along the pipe-line and never
took any measurements to the south of it. Yet she had to admit that the receipt was read out to her
and she witnessed it without noticing any error. Seeing that this document was made out immediately
after the visit to the land it is difficult to believe her story that she noticed no error and made no protest
that the measurements which had just been taken were not incorporated in the receipt in place of the
very vague estimate of 1 lots.
The trial judges view of the appellants motives is expressed as follows:
The plaintiff acquired this land at a low priceit has increased in value very swiftly. The defendant
was aware of the inaccurate estimate of size stated in the receipt and she tried to use this as a means
of escape from her obligation.
In the light of the extrinsic evidence in this case I think the learned trial judge was right in finding that the
land sold was that described by boundaries in the receipt and that the description of the area should be
rejected. However, I consider that the order for specific performance cannot stand for the appellant
conveyed plot 15 to England in 1949 and he is not a party to this action.
I would set aside the order of the court below and send this case back; no order as to costs on the
appeal; the respondents to be at liberty to apply within one month from the determination of the appeal to
that court to join England as a defendant so that the issue as to whether England holds plot 15 as a trustee
for the respondents be determined. If England is joined as a defendant, the

209
costs both of the first and subsequent proceedings in the court below shall be at the discretion of that
court. If no such application is made, or if made, is refused, then the respondents to be at liberty to apply to
the court below to assess damages for breach of the agreement or for specific performance as to plot 14
and damages for failure to convey plot 15, in which event, the costs of the trial and subsequent proceedings
shall be in the discretion of the court hearing the application for damages.
RENNIE J. I concur.
ARCHER J. The respondents to this appeal (the plaintiffs in the court below) brought an action against the
appellant claiming specific performance of an agreement for the sale of land to them by the appellants
father, Cipriani Thomas, of whose estate she is the legal personal representative, and damages. On 11
August 1943, Cipriani Thomas received the sum of $90.00 from the male respondent in full payment of the
purchase price of the land and gave a receipt for it, but he died on the following day without having executed
the necessary deed of conveyance. The male respondent subsequently called upon the appellant to convey
the land but she refused and contends in this action that the respondents purchased a much smaller portion
of land than that which they claim. The copy of the receipt (Exhibit 1 *) describes the land purchased both by
approximate size and by boundaries. It is the appellants case that the boundaries have been misdescribed.
It is the respondents case that the area was only roughly estimated and that the boundaries have been
accurately described in the receipt. The dispute concerns a comparatively small parcel of land but that
parcel is nearly half the size of the total area which the respondents say they bought. This disputed portion
was conveyed to a third person in 1949, after the issue of the writ, but that person has not been made a
party to these proceedings. The trial judge found that the respondents had bought the land which they claim
and that the receipt records the transaction with sufficient clarity. He ordered specific performance of the
agreement.
Counsel for the appellant submitted that the conclusions of the trial judge were faulty and against the
weight of evidence and that the granting of a decree of specific performance was, in the circumstances,
contrary to established equitable principles.
There was evidence that the male respondent wrote the receipt though he said that he could not recall
who had written it. He was familiar with the land he was purchasing and aware of the presence on the land
of a pipe-line which runs through the deceaseds land and divides the disputed portion from the other portion
to which the receipt relates. The receipt was read and witnessed by the appellant who says that the male
respondent read the document to her father. No objection was taken at the time to the description of the
southern and eastern boundaries of the land being sold and there is no evidence of a mistake either on the
part of Cipriani Thomas or of the male respondent or of both. It is indeed difficult to imagine that any person
who knew the land well could have failed to observe that Gransaulls lands were being mentioned in the
receipt as a boundary if the pipe-line was intended to be that boundary. The trial judge found it hard to
believe that the appellant noticed no error in the description or, if she did, that she would not have pointed it
out at the time, particularly as she says that measurement of the land to be purchased had taken place

shortly before the receipt was made and the receipt could therefore have contained not only a proper
description of the land but accurate figures of measurement instead of an estimate of one and a half lots.
The authorities on mistake to which counsel for the appellant referred are not in point nor are his
submissions on the principle of falsa demonstratio non nocet applicable to the circumstances of this case.
There is, on the contrary,

210
strong authority for saying that the description of one and a half lots more or less in the receipt and not
the description of the boundaries was falsa demonstratio and reference need only be made to Llewellyn v
Jersey (Earl) ((1843), 11 M & W 183, 12 LJ Ex 243, 152 ER 767, 17 Digest (Repl) 286, 931). It is true that in
that case the conveyance referred to a plan and that the statement of the description by admeasurement
was subsequent to that of the description which was found to be accurate, but this would appear not to be of
any account. In Norton On Deeds, (1906) at p 225, this passage occurs: It has been said that when there
are two certain descriptions, the first shall necessarily prevail; but this appears not to be correct. The
learned author then discusses two cases in which the rule that the first certain description prevailed was
upheld, and passes on to a consideration of Cowen v Truefitt, Ltd ([1899] 2 Ch 309, 68 LJ Ch 563, 81 LT
104, 47 WR 661, 43 Sol Jo 622, CA, 44 Digest 907, 7668), the decision in which turned upon a different
point but in which there are expressions of opinion as to the modern view of the matter. Lindley MR ([1899]
2 Ch at p 311) said:
I must, however, protest against the way in which the doctrine was stated by the appellants
counselthat the maxim falsa demonstratio non nocet only applies when there is some incorrect
description at the end of the sentence. That is whittling away the doctrine and making it ridiculous: it is
a misapprehension.
Jeune P (ibid, at p 313) said:
I agree, however, that the doctrine is not to be cut down, as was suggested by the appellants
counsel, by saying that it is to be limited to cases where the false part of the description follows the
true. That would be cutting down what is a rational and useful canon of construction.
Rigby LJ (ibid, at p 313) said:
I will only add on this part of the case that I altogether reject the argument, as my learned brothers
have done, that in applying the doctrine of falsa demonstratio it is material in what part of the sentence
the falsa demonstratio is found. To adopt such an argument would be to reduce a very useful rule to a
mere technicality.
There is accordingly no substance in the argument that the description by estimation must prevail because it
occurs before the description by boundaries. But apart from this consideration, there is the further
consideration that in this case there are not even two certain descriptions. The estimate of one and a half
lots is no more than conjecture as to the probable extent of the land bargained for. The judge has found that
the inaccuracy is probably due to the presence of thick bush on the land when Cipriani Thomas and the
male respondent inspected it prior to their agreement, which made accuracy unlikely.
Counsel for the appellant urged that there are circumstances in the case suggesting undue influence
but undue influence was not an issue in the court below. Counsel also submitted that as the claim concerns
the estate of a deceased person it was dangerous to act on the uncorroborated evidence of the male
respondent.
I think that the findings of the trial judge are eminently justified by the evidence and no valid objection
can be taken to them.
The sale of the disputed portion of land to a stranger was mentioned in a letter from the appellant to the
male respondent dated 27 February 1947, five months before the writ was issued, and evidence that the
land was conveyed in 1949 was given by the purchaser, Norman England, who was a witness for the
defence. Counsel for the respondents concedes that that part of the order requiring the appellant to convey
the disputed portion of land to the respondents cannot, in the existing circumstances, stand. Counsel for the
appellant said that the respondents had been dilatory in coming to court but the facts do not warrant that
criticism. It is, however, their own fault that Norman England

211
was not made a defendant either at the time of issue of the writ or at some time before judgment was
given in the action. The issue whether he took the disputed land subject to the respondents interest or not
remains unresolved and stands in the path of a decision one way or the other on the question of granting
specific performance of the agreement to sell that portion of land and of final adjustment of the matter. I

think that the appeal should be allowed and the course proposed adopted. I also agree with the proposed
order as to costs.
Appeal allowed; case remitted.

(1959), 1 WIR 212

Levison Lorde And Others v Florence Clarke And Others

SUPREME COURT OF BARBADOSCIVIL JURISDICTION
FIELD J
31 MARCH 1959

Damages Joint tortfeasors taking part in act not unlawful Contribution indemnity Defendants liable
Contribution Absence of notice Application before final judgment.
The plaintiffs obtained damages against the defendants on the ground of trespass to property. The
judgment was set aside as regards the defendants Luther Greaves and Daisy Greaves. At the re-hearing
Luther Greaves admitted liability but claimed an indemnity against the defendant Florence Clarke. It was
proved that Florence Clarke had hired the truck which was used for transporting the plaintiffs property, the
subject of the trespass, from Daisy Greaves. Luther Greaves was the driver of the truck. He did no act
which was inconsistent with his employment as a truck driver.
Held: He was entitled to be indemnified by Florence Clarke. With regard to Daisy Greaves the evidence
established that she had assisted in the removal of the property although there was no necessity for her to
do so. Florence Clarke had led her to believe that the house was being lawfully removed.
Held: She was entitled to contribution from Florence Clarke to the extent of 50% of the damages.
Order accordingly.
D H L Ward (instructed by Haynes & Griffith) for the plaintiffs
H B St John (instructed by Yearwood & Boyce) for the defendant Martin Greaves and the defendant Daisy
Greaves
Case referred to
Croston v Vaughan [1938] 1 KB 540, [1937] 4 All ER 249, 107 LJKB 182, 158 LT 221, 102 JP 11, 54 TLR 54,
81 Sol Jo 882, 36 LGR 1, CA, Digest Supp
FIELD J. In this action the plaintiffs sought to recover against the defendants a boarded and shingled house
or its value, and damages for trespass. Judgment was entered against all the defendants by default but was
subsequently set aside so far as the defendants Luther Greaves and Daisy Greaves were concerned. The
present issue therefore is to determine the liability or otherwise of these two defendants. The defendant
Luther Greaves does not deny liability but claims an indemnity against the defendant Florence Clarke,
whereas the defendant Daisy Greaves denies liability generally.

212
The claim by the plaintiffs is in respect of the removal of a boarded and shingled house belonging to the
first-named plaintiff and occupied by the second-named plaintiff.
Judgment by default was entered in favour of Levison Lorde in the sum of $960.00, the value of the
house, and $55.00 for its detention, and in respect of the second plaintiff Earle Perryman, for $100 damages
for trespass and $55.00 special damages. In the present issue those amounts are not disputed.
In so far as the defendant Daisy Greaves is concerned she is not denying the fact that the house was
removed, but denies that she took part in its removal as servant or agent of the defendant Florence Clarke
or at all.
It appears that the defendant Florence Clarke hired a motor truck owned by the defendant Daisy
Greaves and driven by her son Luther Greaves, for the purpose of conveying the house from St Philip to St
Michael. On behalf of the plaintiffs evidence was called in the persons of Emmanuel Lorde, Byron Lyte,
Neville Hewitt and Lavinia Perryman, all of whom stated that on the day in question the defendant Daisy
Greaves was present assisting in removing the house and putting it on the truck. Emmanuel Lorde is the

father of the plaintiff Levison Lorde and his constituted attorney by whom he appears in this case. Lavinia
Perryman is the mother of the other plaintiff and was at the house on the day of its removal. Byron Lyte is a
member of the Barbados Police Force and a writ server of the district for the Magistrates Court. For the
defence Luther and Daisy Greaves were called and also one Eustace Elliott Alleyne, another Police
Constable: they stated that the defendant Daisy Greaves took no active part in removing the house or
assisting to put it on the truck. Of the two Police Constables Byron Lyte appeared first on the scene and left
shortly after the arrival of Alleyne, who had been sent specially from District C Police Station to preserve
the peace during the removal of the house. The difference in their testimony as to the part played by Daisy
Greaves can be explained on that account, that is to say, that in the beginning the defendant Daisy Greaves
may well have assisted in removing the house and putting it on the truck during the time P C Lyte was there,
but subsequently desisted so that when P C Alleyne arrived she was no longer taking a hand in what was
going on. Perhaps his arrival may well have caused her to have second thoughts and some misgiving,
which may be the reason for her quarrelsome conduct as stated by him. However, on the whole of the
evidence of the witnesses I accept the evidence of the plaintiffs witnesses that Daisy took part in the
removal of this house, and I am further satisfied that in so doing she was acting as the servant or agent of
the defendant Florence Clarke.
The only other issues to be determined are whether either or both defendants is or are entitled to
contribution from any other defendant. The defendant Luther Greaves served notice on the defendant
Florence Clarke claiming contribution in the form of a complete indemnity. She appeared in person but did
not contest the notice. It is permissible for contribution amounting to 100% to be awarded and in such
circumstances such an award would amount to an indemnity, and in the circumstances the defendant Luther
Greaves is asking the court so to hold. He was the driver of the truck on which the house was placed and
removed. The lorry, as previously stated, belongs to his mother, but he is the regular driver. He appears to
have taken some small part in assisting to put the house on the lorry but perhaps no more than an ordinary
driver would do in supervising the loading of a truck. For whatever reason he so acted, it seems to me that
he was taking part in an act which was not in itself unlawful or illegal and in such circumstances would be
entitled to look to the person who employed him or to the person who had contracted for the use of the truck,
to stand by him if his act turned out to be actionable. I consider that in these circumstances I am justified in
holding that there can properly

213
be implied a contract between Luther Greaves and Florence Clarke to be indemnified if, as the driver of
the truck hired by her, he should be sued for so acting. I accordingly award contribution in his favour
amounting to 100%, which is in effect a complete indemnity.
In so far as the defendant Daisy Greaves is concerned, no similar notice was served in respect of
contribution, but counsel for the defendants in his address referred to the case of Croston v Vaughan ([1938]
1 KB 540, [1937] 4 All ER 249, 107 LJKB 182, 158 LT 221, 102 JP 11, 54 TLR 54, 81 Sol Jo 882, 36 LGR 1,
CA, Digest Supp) and claims that notwithstanding no such notice having been given, application may be
made before final judgment and during the proceedings, and accordingly he asked the court to consider
what contribution, if any, Daisy Greaves should be entitled to, if found generally liable.
Having previously held that the defendant Daisy Greaves was jointly liable with the other defendants, I
will consider her position so far as contribution is concerned. Her position is not on all fours with that of
Luther Greaves. There was absolutely no necessity for her to take any part in the removal of the house.
Her truck was hired by Florence Clarke and when she started to go on the truck to the site of the house
along with the other defendants, and there to assist in the beginning in putting the house on the truck, she
was doing more that she ought to have done; and she should have taken care to ascertain the true position
with regard to the house, particularly having regard to the fact that it was occupied at the time by Lavinia
Perryman. Lavinia had to remove her things from the house and, as luck would have it, Earle was out
fishing and so not at home. In exercising my discretion as to the question of what, if any, contribution Daisy
Greaves is entitled to, regard must be paid to those facts. I do consider that she is entitled to some
contribution inasmuch as Florence Clarke had led her to believe that she (Florence) was authorised to
remove the house. In the circumstances I consider that daisy Greaves is entitled to contribution amounting
to 50% from the defendant Florence Clarke and I so order.
Costs (after argument). Plaintiff to recover costs against the defendants who in turn are entitled to
recover costs from defendant Florence Clarke, in the terms of a Bullock order. Costs to be on the old scale.
Order accordingly.

(1959), 1 WIR 214

Walcott Lime Works & The Barbados Potteries Limited v The Natural
Gas Corporation
SUPREME COURT OF BARBADOSCIVIL JURISDICTION
STOBY CJ
28 APRIL 1959

Rates Increase Nationalised Corporation Rate base Whether applicable Public Utilities Public
Utilities Board Functions Procedure Public Utilities Act, 1951 [B].
The Natural Gas Corporation, a public utility within the meaning of the Public Utilities Act, 1951 (No 31 of
1953) [B], gave notice to the Public Utilities Board that it intended to increase the rates for natural gas
supplied to consumers. Prior to the notice there were two areas in existencearea A and area B. By reason
of its proximity to the high-pressure lines, consumers in area A enjoyed a much lower rate than consumers in
area B. The Corporation desired to abolish this differential. Two consumers of area A opposed the

214
increase. The Board after a hearing did not confirm the Corporations proposed rate, but fixed a rate of its
own. The Board did not fix any temporary rate when the two consumers opposed the Corporations rate.
The Corporation and both consumers appealed.
On appeal it was argued that the Corporations proposed rate was the existing rate by reason of s 18 (1) of
the Act, which states:
Unless the Board otherwise orders, no public utility shall make any change in any existing and duly
established rate, except after sixty days notice to the Board, which notice shall state the changes
proposed to be made in the rates then in force and the time when the changed rates are to take effect.

It was also submitted for the Corporation that the Board erred in deciding to fix rates on the basis of a rate
base formula.
For the two opposers it was submitted that the Board erred in not holding that the Corporation had failed to
discharge the onus of showing that the proposed rate with respect to area A was fair and reasonable.
Held: As the Board had not acted in compliance with s 18 (1) of the Act, the proposed rate was the existing
rate until set aside on appeal. The Board erred in deciding that the rate base formula is inapplicable to a
nationalised undertaking. The Corporation had proved that it was not receiving a fair rate of return and was
entitled to an increase in rates. There was no evidence to justify this increase falling on area A alone nor
any evidence that area A was losing money, consequently the differential should be maintained and the
increase in revenue obtained from both areas.
Liberty to apply.
Case referred to
Re The Barbados Light & Power Company Limited No 1 of 1956
A K walcott (instructed by Hutchinson & Banfield) for complainants-respondents
J S B dear (instructed by Cottle, Catford & Co) for defendant-appellant
STOBY CJ. These two appeals and cross-appeals from the order of the Public Utilities Board (hereinafter
called the Board) were taken together with the consent of both parties to the appeal.
The Boards order arose out of a notice filed by the Natural Gas Corporation (hereinafter referred to as
the Corporation).
Section 18 (1) of the Public Utilities Act, 1951 (No 31 of 1953) [B], provides that unless the Board
otherwise orders, no public utility shall make any change in any existing and duly established rate, except
after sixty days notice to the Board, which notice shall state the changes proposed to be made in the rates
then in force and the time when the changed rates are to take effect.

As the Corporation desired to make a change in the existing and duly established rate it gave the notice
required by s 18 (1).
It is not clear from the record from what date the proposed rates were to take effect but I was informed
by counsel that the proposed rate was to take effect from 1 May 1958.
On 30 April 1958, the Walcott Lime Works filed a complaint alleging that the proposed rate was unfair
and unreasonable.
On 3 July 1958, the Barbados Potteries Limited filed a complaint also alleging that the proposed rate
was unfair and unreasonable.
These two complaints were heard by the Board and on 24 September 1958, the Board disapproved of
the proposed rate and substituted a rate of its own.
It is from this rate of the Board that the Corporation, the Walcott Lime Works and the Barbados Potteries
Limited have each appealed.
Before dealing with the substantial issues raised in the appeal it will be convenient to dispose of one or
two subsidiary issues on which I have been invited to rule.

215
The questions posed are:
(a) whether the proposed rate is not now the existing rate by virtue of the provisions of s 18 (2) of the
Act; and
(b) what is the true position of the Barbados Potteries Limited having regard to the date of their
complaint.
The questions require a consideration of some of the sections of the Act.
Section 18 (1) of the Act has already been set out in full.* Section 18 (2) states:
Whenever there is filed with the Board by any public utility any tariff stating a new rate, the Board
may, either upon complaint or upon its own motion, enter upon a hearing to determine whether such
rate is fair and reasonable and pending such hearing and the decision thereon, the Board, upon
delivering to the public utility affected thereby, a statement in writing of its reasons therefor, may, at any
time before it becomes effective suspend the operation of such rate for a period not longer than six
months from the time such rate would otherwise become effective.
It is apparent from the precise words of s 18 (2) that the only way a proposed rate can fail to become
operative at the date when a public utility has stated in its notice that the rate is to take effect, is for the
Board to suspend the coming into effect of the proposed rate. If the Board fails to do this then the proposed
rate automatically commences at the notified time.
Section 18 (3) of the Act does not admit of any ambiguity. It directs the public utility or corporation
which has had its proposed rate suspended to collect on the old rate. The section also permits the Board to
establish a temporary rate on which the utility concern can carry on during the period of suspension which
cannot be longer than six months.
Section 20 (1) at a glance would seem to be in conflict with s 18 but a careful scrutiny enables me to
give an interpretation consistent with the scheme of the Act. Section 20 reads:
(1) The Board may, in any proceeding involving the rates of a public utility brought either upon its
own motion or upon complaint, if it is of the opinion that the public interest so requires, immediately fix,
determine and prescribe temporary rates to be charged by such public utility pending the final
determination of such rate inquiry.
(2) Whenever the Board, upon examination of any annual or other report, or of any papers, records,
books or documents or of the property of any public utility, shall be of the opinion that any rates of such
public utility are producing a return in excess of a fair return upon the fair value of the property of such
public utility, used and useful in its public service, the Board may, by order, prescribe for a trial period
not exceeding six months, such temporary rates to be observed by such public utility as in the opinion
of the Board, will produce a fair return upon such fair value, and the rates so prescribed shall become
effective upon the date specified in the order of the Board, and so shall become permanent at the end
of such trial period, unless at any time during such trial period the public utility involved shall complain
to the Board that the rates so prescribed are unfair and unreasonable.
(3) Temporary rates so fixed, determined and prescribed under this section shall be effective until
the final determination of the rate inquiry, unless terminated sooner by the Board.
(4) If the rates as finally determined are in excess of the rates existing prior to the filing with the
Board by a public utility of a tariff stating a new rate under the provisions of subsection (2) of section 18
or of the rates prescribed in such temporary order then the public utility shall be permitted to amortise
and recover by means of a temporary increase in the rates finally determined

216

the sum which represents the difference between the gross income actually received by the public
utility during the period commencing with the date on which under the notice given to the Board the
new rate was to have come into effect and ending on the date on which the rate finally determined
became effective and the gross income which would have been received during the same period if the
rates finally determined had been in effect.
Subsections (1), (2) and (3) of s 20 apply to proceedings brought in respect of existing rates. Under s
18 the procedure where the public utility desires an increase is provided for, but under s 20 (1), (2) and (3)
provision is made for the fixing of temporary rates although no application has been made by the public
utility for an increase. I am fortified in this view by the language of s 18 (1), which speaks of a change in an
existing rate, and the absence of any such language in s 20.
Under s 18 the temporary rate cannot remain longer than six months; the section in effect enjoins the
Board to complete its investigation within six months. Under s 20 the temporary rate remains until the
completion of the inquiry even though the inquiry lasts more than six months.
Subsection (2) of s 20 has reference to a third situation. It envisages the Board requesting the public
utility to submit certain documents for examination and on its own motion fixing temporary rates for six
months, or alternatively the Board could fix such a temporary rate after reviewing and examining the
Corporations annual report. In carrying out its functions under this subsection the Board may, but it is not
compelled to, give the public utility a hearing. The Board is required to accept the published figures of the
public utility and it is only if on those figures it appears that the rates are producing a return in excess of a
fair return upon the fair value, that the Board can fix a temporary rate for six months to be followed by the
procedure as set out in the subsection.
Subsection (4) of s 20 is enacted to prevent the public utility concern suffering a loss as a result of the
Boards action in fixing a temporary rate. This subsection is applicable to proceedings under s 18 as well as
under s 20.
The conclusion I draw from these observations is that a vacillating complainant might find he has
undertaken an impossible burden. Section 21 provides that in any proceeding upon a complaint involving
any proposed increase in rates the burden of proof to show that the rates involved are fair and reasonable
shall be upon the public utility. Where the complaint is in respect of an existing rate the burden is on the
complainant on the principle that he who asserts must prove unless of course he can persuade the Board to
act of its own motion in which case the burden is on the public utility irrespective of whether the proceedings
are in respect of an existing or proposed rate.
It follows from what I have said that the Barbados Potteries Limited having filed the complaint after the
proposed rate had become an existing rate, the burden of proof is on them.
In these proceedings I have discussed the sections in deference to counsel, but the point is academic,
as the Walcott Lime Works complaint was in time, and a decision in favour of that company will eventually
be to the advantage not only of the speedy but also the slothful.
The substantial issues in these appeals now fall for consideration.
Counsel for the corporation submitted that since the companies never disputed that the corporation was
entitled to an additional revenue of thirty-six thousand dollars the Board erred in proceeding to fix rates on a
formula other than a rate base formula. He referred me to the decision of Gomes CJ, in Re The Barbados
Light & Power company Limited, (No 1 of 1956), where he said (No 1 of 1956 at p 6):

217
It seems to me that the great diversity of views, as evidenced by text-writers, on the whole method
of ascertaining fair value emphasises the fact that it is impossible to value the undertaking of a public
utility unless a basis, or what is called a rate base is found; and most, if not all, of the textbooks are at
pains to show that there must be a rate base, the base with which the return may be compared and
tested to see whether the rate is fair and reasonable.
At paragraph 17 of the Boards decision this passage appears:
17. As will be seen from the above there are no outside interests or equity shareholders involved
in the financial structure of the Corporation. In this regard it differs from the Barbados Light and Power
Co Ltd and the Barbados Telephone Co Ltd. Both of these concerns charge their customers rates
based upon a rate base formula calculated to guarantee the equity shareholders a reasonable return
on their investment. The Board is of the opinion that a rate base formula should not apply in this
instance.
In the light of that passage counsel submitted that the Board ignored the provisions of the Act and had
sought to draw a distinction between a utility company which issued shares to the public and a nationalised
utility corporation, when nowhere in the relevant legislation was any such distinction contemplated.

There is much to be said in favour of the distinction which the Board sought to draw. The policy of the
nationalisation of industries is founded on two broad principles, firstly that public ownership of certain
essential industries is necessary for the security of the state in time of war and for the efficient functioning of
an essential industry in time of peace and, secondly, that public ownership eliminates the concept of profit
making and enables the consumer to benefit from the low rates resulting from trading without profits.
But do these principles mean that the rate base formula is inapplicable to nationalised undertakings?
The Board supported its view from the following passage in Barnes On The Economics Of Public Utility
Regulation (pp 830, 831):
Where consumers, through the rates paid, have amortised a part of the capital cost of the
enterprise, no justification exists for asking them to continue to pay a fair return upon that capital, and
the equities of the case are not changed whether the utility is a private venture or a public undertaking.
And simply because the legal rights of the private utility might permit it to continue to demand a fair
return upon its property under such circumstances is certainly no justification for applying the same
inequitable rule to the municipal enterprise.
I have not had an opportunity of consulting Barnes work but if it is agreed (as I think it must) that one of
the methods used in computing a rate base is to include in the cost of the service a sum which represents
the value of the capital invested in the business then possibly what Barnes meant was that capital cost
which has been amortised by consumers or by the general tax-payer is no longer a proper item for inclusion
in the rate base.
Whether this is the correct interpretation or not, Barnes criticism can be met by allowing a smaller rate
of return for nationalised concerns than in the case where shareholders are concerned.
In the fixing of rates some method has to be devised and the text-writers to whom I have been referred
both agree that while there may exist a difference of opinion as to how the rate base should be arrived at
there is no disagreement that the rate base formula is the recognised and accepted method.
If Barnes was really expressing the view that a certain amount should not be included in the calculations
used for arriving at the rate base then the Board overlooked the fact that neither the companies nor the
Board itself challenged

218
the rate base. Once the rate base is not challenged all that remains for the Board to do is to ascertain
whether the Corporation is receiving a fair return on that rate base.
In deciding whether a fair return is shown it is permissible, as the companies have attempted to do, to
show that the onus has not been discharged by pointing to items of expenditure which are unnecessary.
Once, however, the Board is satisfied that the Corporation is not receiving a fair return then its duty is to fix a
rate which will give such a return.
As I have already indicated, I can think of no valid reason why one of the factors which the Board may
take into account in arriving at a fair rate of return is the constitution of the utility concern. If it is a
nationalised body the principle of non profit making must be kept in mind but so too must the statutory
obligations imposed on the Corporation. In the instant circumstances the rate of return 3.48% is a modest
one and no objection can be taken to it whatever.
The remaining question to be decided is on whom this increase should fall. A short review of the
Corporations life will not be out of place at this stage.
A company called British Union Oil Company Limited was carrying on business in Barbados and
supplied natural gas to consumers in a certain area. This area came to be known as area A.
The Barbados Gas Company Limited purchased gas from British Union and supplied consumers in an
area which became known as area B.
By reason of the proximity of area A to the high-pressure lines the price of natural gas to consumers in
area A was less than the price to area B consumers.
In 1950, by virtue of the Natural Gas Corporation Act, No 56 [B], ownership of the British Union Oil
Company was transferred to the Natural Gas Corporation who continued to supply consumers in area A.
In 1955 the Natural Gas Corporation decided to purchase the Barbados Gas Company Limited. The
following statement in the Corporations 5th Annual Report is illuminating:
Arising out of the purchase of the Barbados Gas Company Limited some changes in the matter of
rates became necessary effective 1st November 1955. Two rate areas were decided upon. Rate Area
A briefly includes all that area supplied directly through high-pressure service pipes connected to field
lines and the transmission line between the field and the Belle Pumping Station. Rate Area B
includes all other areas.
The rates in Rate Area A were continued as they were before the acquisition of the Gas Company.

The rates in Rate Area B were changed from a therm to a volume basis in such a manner as to
keep each monthly charge the same as it would have been had the customer been billed by the Gas
Company as formerly.
Thus it will be seen that one of the first acts of the Corporation was to perpetuate a difference in the
rates between the two areas.
Such being the position it has to be assumed that the rates fixed for area A and area B were fair and
reasonable. A corporation which from its inception recognises a differential in two areas and a further
differential between consumers in those areas cannot at some future date be heard to say that those earlier
rates did not produce a fair return on the fair value of its property. True, this corporation inherited the legacy
of a differential in two areas. It may well be that it was an inheritance which proved to be uneconomic but
when a Government is acquiring a commercial undertaking, prudence demands that an investigation should
be undertaken before the acquisition and not after. Had such investigation been undertaken it would have
been possible to abolish the differential by legislation enacted immediately after the purchase in 1955.
Having traded, however, on the basis that there was a differential between area A

219
and area B, the Corporation cannot abolish an existing rate without complying with the provisions of s
18 of the Act of 1953. In so far as Walcott Lime Works is concerned the onus is on the Corporation to prove
that the proposed increase in rates in area A is fair and reasonable.
Counsel for the Company put his submission before the Board this way: It is admittedly clear that a
public utility is entitled to a fair return on the value of its capital outlay. In the present case the fact that such
fair return cannot be obtained under the present rate has not been challenged by the Walcott Lime Works.
The question at issue is whether the Natural Gas Corporation is entitled to raise the sum of $36,000 by
scrapping the old schedule of rates and substituting a new one under which almost the entire burden of
paying the additional $36,000 will fall upon the industrial consumers of area A.
That is the gravamen of the Companies complaint before me. In addition an attempt was made to
show that the sum of $36,000 was excessive having regard to the particular constitution of the Corporation
but as I have indicated earlier in this judgment I consider a rate return of 3.48% a reasonable one.
In my view the Corporation by evidence has proved that it is not receiving a fair return but it has not
discharged the onus of proof that the proposed rates in respect of area A are fair and reasonable. Nor has
the Board in its laudable efforts at compromise applied the correct legal principles which the Act and
decisions of this court require it to apply. The result is that the Corporations proposed rates and the rates
approved by the Board are both set aside and the Corporation is directed to revert to the distinction between
area A and area B.
Counsel for the Companies submitted that if it was decided to increase the rates and revert to an area
differential the proper test to apply in order to arrive at an equitable figure was the cost test. After an
exhaustive analysis of the Corporations statement of accounts contained in its Seventh Annual Report he
urged that only $6,000 of the Corporations net loss of $6,326.42 was attributable to area A and
consequently the rate increase should be higher in area B, which lost a little over $6,000, than in area A.
While the cost test is undoubtedly a fair means of arriving at a proper figure counsels analysis of cost is
more ingenious than sound.
Assuming that the percentage of total withdrawal of gas needed to supply area A is 14.1% it is illogical
to argue that the production and transmission expenses of the Corporation which come to over $34,000
should be limited in the proportion of 14% to area A and the remainder to area B.
Mr Orchard* in his evidence said If there is no area B, area A would not be justified. In other words the
only reason why the 18 consumers in area A continue to receive natural gas is because of the existence of
837 users in area B. The energy, thought and administrative effort necessary to keep area A functioning
cannot be translated into percentages and calculated with mathematical nicety unless appropriate research
is done. Where expenses are concerned the Corporation has to be treated as a whole and the necessity for
expending money in production, transmission, distribution and general administration is the expenditure of
both areas.
Unfortunately the Corporation has never carried out the research required if the differential is to be
maintained and an increase of rate fixed on a scientific basis. There is no available material on which the
cost test can be applied scientifically and not speculatively.
Counsel for the Corporation did not suggest any method as obviously the Corporation concentrated on
the proposition that the existing differential should be abolished.
Although neither counsel has been able by a satisfactory formula to indicate what proportion of the
increase in revenue that is required should come from area A and what from area B the documentary
evidence offered some help.

220
The proforma profit and loss account Ex PO 2 tendered by Mr Orchard estimated that the gas salesnet
ending 31 March 1958, would be $140,991.48 and the anticipated net loss $10,519.92. The audited profit

and loss account for the year ending 31 March 1958, gives the gas salesnet as $150,333.46 and the net
loss as $6,326.42.
I have already expressed the view that the Corporation is entitled to a rate return of 3.48% on the rate
base submitted. To achieve this the original proposals budgeted for an increase of $36,000 in the gas sales
net. It may be possible in the light of the audited profit and loss account or in the light of the returns for
1958/1959 to obtain the rate return of 3.48% without increasing the rates to provide for as much as $36,000.
On the other hand if the revenue increases without any increase in rates the expenses may also increase
and consequently I propose to allow the Corporation to devise rates which would increase its revenue by
$36,000 on the basis of the figures contained in Exhibit JSB 1, that is, the analysis of gas sold in fiscal year
1957/1958 showing percentages of total gas sold and total revenue, unless now that I have drawn attention
to the upward trend of sales the Corporation feels justified in estimating for less than $36,000.
The document Exhibit JSB proves that area A consists of 18 consumers who contribute nearly 7% of the
Corporations revenue. Until the Corporation is prepared to undertake the research and keep the statistics
necessary to justify the Board or the court finding that on legal principles the two areas should be
amalgamated or that area A should be subjected to a rate increase higher than area B, I can think of no
other way of preserving the status quo than by directing that area A bear 7% of the $36,000 and area B the
remainder. The following calculations will allay any fears in the minds of area B users about possible
increases:
Area A
Increase
4 Industrial consumers
Say 6% of $36,000 = $2,160
Average increase
$540 per year
14 Residential consumers
Say 1% of $36,000 = $360
Average increase
$25 per year
Area B
Increase
6 Industrial consumers
Say 20% of $36,000 = $7,200
Average increase
$1,200 per year
831 Residential consumers
Say 73% of $36,000 = $26,280
Average increase
$32 per year.
Finally it remains for me to decide the question raised by counsel for the Corporation as to the present
position of the Corporation regarding its rates.
At the commencement of this judgment I held that where a corporation had given the notice of a
proposed rate required by s 18 of the Act and the Board had not suspended the proposed rate then it
became effective on the date stated in the notice.
The question arising is whether the Corporations rates were stayed by proceedings in Chambers.
After an appeal was filed from the Boards order counsel for the Corporation and solicitor for the
Companies appeared before a Judge in Chambers and the following order was agreed on:

The 17th day of October 1958.

Upon hearing counsel for the defendant-appellant and upon hearing solicitor for the complainantrespondent It Is Ordered that the Order made herein by the Public Utilities Board on the 24th day of
September 1958 be suspended during the pendency of this Appeal and IT IS FURTHER ORDERED
that the rates to be charged by the Natural Gas Corporation from the 1st day of May 1958

221
to the date of the determination of this Appeal shall be such as are prescribed by the Chief Justice
or one of the Puisne Judges of this Island.
Counsel for the Corporation informed me that the order was so drawn as there was doubt about the
interpretation to be given to certain sections of the Act and a decision was desired.
Counsel for the Companies informed me that his instructions were that the intention was to make this
decision operative from 1 May 1958.

I am convinced that a misunderstanding arose but no consent order can have any effect on persons not
parties to the proceedings.
In my view the Corporations proposed rates became effective from 1 May 1958, and can only be
changed from a date after a decision by this court. It may well be that as between the parties to these
proceedings the consent order will have the effect of precluding the Corporation from charging the
companies the May 1958, rates but that is a matter not requiring a decision now. So far as the general
consumer is concerned the Corporations rate is the one which came into force on 1 May 1958, and can only
be changed from the date stated in this judgment.
Section 45 of the Act requires me after determining the questions raised in the appeal to certify my
decision to the Board. I certify as follows:
1. The Boards order of 24 September 1958, is set aside.
2. The Corporations rate which became effective on 1 May 1958, is set aside from 1 July 1959.
3. The Corporation is entitled to a rate return of 3.48% on a rate base of $712,866.40.
4. The Corporation is directed to adhere to a differential in rates between area A and area B.
5. The Corporation is directed to devise a new Schedule of rates which would give an estimated
increase of $2,520 (7% of $36,000) in Area A and $33,480 (93% of $36,000) in area B.
6. The Corporation is directed to give the Public Utilities Board 30 days notice of when the
Schedule devised in compliance with this order should come into effect. Any person desirous of
objecting to the Schedule should do so within 30 days.
7. If the new rate is not devised by 1 July 1959, the Corporation is directed to revert to the pre-May
1, 1958, rate until such new rate is devised.
8. As between Barbados Potteries and Natural Gas Corporation no order as to costs.
9. As between Walcott Lime Works and Natural Gas Corporation the Corporation to pay the
Company half of their taxed costs.

Liberty to apply.

222
(1959) 1 WIR 223

Medford v Medford
FULL COURT OF THE SUPREME COURT OF BARBADOS
STOBY CJ AND FIELD J
8 MAY 1959

Husband and wife Wilful neglect to maintain Matrimonial offence Cruetly Constructive desertion
Previous proceedings Res judicata.
The respondent wife left the matrimonial home after her husband had struck her several times and
threatened to take her life if she did not leave. When she attempted to return the next day he again
threatened violence. They lived separately and apart for about nine years, after which period the husband
instituted proceedings for divorce on the ground of desertion. The wife crosspetitioned on the ground of
cruelty. The petition and cross-petition were dismissed.
The wife then instituted proceedings before a court of summary jurisdiction for maintenance on the ground of
wilful neglect to maintain. The husband admitted that he had not maintained her but contended that she had
deserted him. The magistrate held that the husband was guilty of constructive desertion and made an order
against the husband.
Held: (1) The husbands acts were sufficiently grave and weighty to justify the wife leaving the matrimonial
home. Acts which do not amount to cruelty may constitute constructive desertion.
(2) As the proceedings in the Supreme Court were never put in evidence in the Magistrates Court there was
not sufficient evidence to determine the issue of res judicata which had not been raised in the court below.
Appeal dismissed.

Cases referred to
Pike v Pike [1953] 1 All ER 232, [1954] P 81, n, CA, 3rd Digest Supp
Timmins v Timmins [1953] 2 All ER 187, 97 Sol Jo 419, CA, 3rd Digest Supp
Starkie v Starkie [1953] 2 All ER 1519
Jones v Jones [1929] All ER Rep 424, 142 LT 168, 46 TLR 33, 94 JP 31, 27 LGR 771, 29 Cox, CC 33, DC,
27 Digest (Repl) 701, 6707
Morton v Morton [1942] 1 All ER 273, 211 LJP 33, 166 LT 164, 106 JP 139, 58 TLR 158, 86 Sol Jo 64, 40
LGR 106, 27 Digest (Repl) 706, 6750
Tulip v Tulip [1951] P 378, [1951] 2 All ER 91, [1951] 1 TLR 1056, 95 Sol Jo 318, CA, 27 Digest (Repl) 85,
635
Russell v Russell [1895] P 315, 64 LJP 105, 73 LT 295, 44 WR 213, 11 TLR 579, 39 Sol Jo 722, CA, on
appeal, [1897] AC 395, HL, 27 Digest (Repl) 356, 2948
Dixon v Dixon [1953] 1 All ER 910, [1953] P 103, Sol Jo 249, 3rd Digest Supp
Edwards v Edwards [1949] 2 All ER 145, [1950] P 8, [1949] LJR 1335, 113 JP 383, 65 TLR 419, 93 Sol Jo
450, 47 LGR 541, CA, 27 Digest (Repl) 366, 3022
Yeatman v Yeatman (1868), LR 1 P & D 489, 37 LJ P & M 37, 18 LT 415, 16 WR 734, 27 digest (Repl) 365,
3019
Buchler v Buchler [1947] P 25, [1947] 1 All ER 319, [1947] LJR 820, 176 LT 341, 111 JP 179, 63 TLR 100,
Sol Jo 99, 45 LGR 442, CA, 27 Digest (Repl) 365, 2899
Bright v Bright [1953] 2 All ER 939, [1954] P 270, 117 JP 529, 97 Sol Jo 729, 3rd Digest Supp

223
Springer v Springer [1952] 1 All ER 373
Papadopoulos v Papadopoulos [1930] P 55, 99 LJP 1, 142 LT 237, 94 JP 39, 46 TLR 44, 73 Sol Jo 797, 29
LGR 73, DC
Appeal
Appeal from the decision of a magistrate whereby the husband was held to be guilty of constructive
desertion.
G B Niles for the appellant
H B St John for the respondent
STOBY CJ delivered the judgment of the court: The appellant was married to the respondent on 11 June
1942. After the marriage they lived and cohabited at an address in Brittons Hill. The marriage was
successful until 1945, when domestic differences must have arisen as the respondent complained that the
appellant commenced to beat her. There is no evidence as to the nature of these assaults and it must be
assumed that they were not of a serious nature.
On 14 June 1949, the appellant, according to the respondent, struck her several times, stood on her
stomach, pulled her off the bed and threatened to take her life if she did not leave the house. As a result of
this conduct and the threat the respondent left the matrimonial home.
On the Monday following the 14th the respondent returned to the matrimonial home with the intention,
she said, of remaining in the house, but her husband arrived and told her to leave. He said If you dont
leave here in life, you leave in death. A police constable who had accompanied the wife at her request was
not present when these words were alleged to be used but said that the wife returned in order to remove her
clothing. The magistrate accepted the wifes version.
The parties lived separate and apart until 1958 when the appellant instituted proceedings against his
wife for divorce on the ground of desertion; the wife cross-petitioned on the ground of cruelty. Both the
petition and cross-petition were dismissed.
Subsequently the wife instituted proceedings before a magistrate of District A claiming maintenance on
the ground of her husbands wilful refusal to maintain her. The magistrate made an order in her favour and
this appeal is from that decision.
Counsel for the appellant submitted that the husband had committed no matrimonial offence and
consequently his wife was not entitled to maintenance. He argued that the assault on 14 June 1949, was
not conduct which could be regarded as sufficiently grave and weighty to amount to cruelty or to justify the
wifes departure. He referred us to Pike v Pike ([1953] 1 All ER 232, [1954] P 81, n, CA, 3rd Digest Supp)
and Timmins v Timmins ([1953] 2 All ER 187, 97 Sol Jo 419, CA, 3rd Digest Supp).
The respondents complaint was brought under s 2 of the Married Womans (Separation and
Maintenance) Act, 1950 [B]; the relevant portion of s 2 reads:
Any married woman whose husband shall have been guilty of wilful neglect to provide reasonable
maintenance for her or her infant children whom he is legally liable to maintain (notwithstanding that

the neglect complained of has not caused her to leave and live separately and apart from him) may
apply for an order under the Act.
This section is the equivalent of s 54 of the Summary Jurisdiction (Married Women) Act, 1895 [UK], as
amended by s 1 of the Summary Jurisdiction (Separation and Maintenance Act, 1925 [UK] Under the Act of
1895 before a married woman could institute proceedings for maintenance on the ground of wilful neglect to
maintain she had to prove that the wilful neglect to provide reasonable maintenance caused her to leave and
live separately and apart from her husband; this requirement was abolished by the Act of 1925.

224
There is no lack of judicial authority indicating the correct interpretation to be given to the section.
In Starkie v Starkie ([1953] 2 All ER 1519) Collingwood J, said ([1953] 2 All ER at p 1524):
It is clear from Jones v Jones ([1929] All ER Rep 424, 142 LT 168, 46 TLR 33, 94 JP 31, 27 LGR
771, 29 Cox, CC 33, DC, 27 Digest (Repl) 701, 6707) and a number of cases up to Morton v Morton
([1942] 1 All ER 273, 211 LJP 33, 166 LT 164, 106 JP 139, 58 TLR 158, 86 Sol Jo 64, 40 LGR 106, 27
Digest (Repl) 706, 6750) that wilful neglect imports some element of matrimonial misconduct.
In Starkie v Starkic ([1953] 2 All ER 1519) it was argued that the contrary was decided in Tulip v Tulip
([1951] P 378, [1951] 2 All ER 91, [1951] 1 TLR 1056, 95 Sol Jo 318, CA, 27 Digest (Repl) 85, 635), a
decision of the Court of Appeal, but the Divisional Court held that Tulip v Tulip ([1951] P 378, [1951] 2 All ER
91, [1951] 1 TLR 1056, 95 Sol Jo 318, CA, 27 Digest (Repl) 85, 635) had not so decided.
Starting from the proposition that wilful neglect to maintain implies matrimonial misconduct then it
follows that if the husband has been guilty of no matrimonial offence he is not liable to maintain his wife.
Whether the appellant committed a matrimonial offence or not depends on the proper legal inferences
to be drawn from the facts proved and accepted by the magistrate.
Counsel for the appellant contended that assuming the wifes evidence to be true the husbands
conduct was not sufficiently grave and weighty to justify the wifes departure from the matrimonial home. In
Pike v Pike ([1953] 1 All ER 232, [1954] P 81, n, CA, 3rd Digest Supp), relied on by counsel, Denning LJ,
said ([1953] 1 All ER at p 235):
This is yet another case in which the doctrine of constructive desertion has been allowed to run
wild. A wife leaves the home, refuses to return to it, and then promptly charges her husband with
constructive desertion. He asks her to come back, but she refuses. There are three letters of 14 Aug
1947, Oct 20 and 22 1947, in which he made it clear that he wanted her to return, and she would not.
No one can doubt that he was ready to take her back if she returned, but yet he has been held guilty of
desertion. Her only justification for not returning is, as she said, his previous conduct. If he had
previously treated her with cruelty, so much so that there was a reasonable apprehension of injury to
her if she went back, she would, of course, be justified in refusing to go back, but, if his conduct was
less than cruelty recognised by law, I do not think she was justified. There may be conduct different
from crueltynot less than itwhich gives her reasonable cause for staying away, as in Russell v
Russell ([1895] P 315, 64 LJP 105, 73 LT 295, 44 WR 213, 11 TLR 579, 39 Sol Jo 722, CA, on appeal,
[1897] AC 395, HL, 27 Digest (Repl) 356, 2948), but even such conduct does not automatically make
him guilty of desertion. To make the husband guilty of constructive desertion, there must be an
intention by him to bring the matrimonial consortium to an end. Any other view would mean that, under
the guise of constructive desertion, there would be introduced new heads for divorce not authorised by
the statute.
In Timmins v Timmins ([1953] 2 All ER 187, 97 Sol Jo 419, CA, 3rd Digest Supp), also relied on by
counsel for the appellant, Denning LJ, referred to his judgment in Pike v Pike ([1953] 1 All ER 232, [1954] P
81, n, CA, 3rd Digest Supp). He said ([1953] 2 All ER at p 191):
We were referred to Pike v Pike ([1953] 1 All ER 232, [1954] P 81, n, CA, 3rd Digest Supp) and, in
view of some comments made on it by Davies J, in Dixon v Dixon ([1953] 1 All ER 910, [1953] P 103,
Sol Jo 249, 3rd Digest Supp), I think I ought to explain some of the things I there said. In considering
whether one party has good cause for leaving the other, much depends on whether the conduct
complained of is of a grave and weighty character or not. Conduct which is of a grave and weighty
character may sometimes fall short of cruelty because it lacks the element of injury to health: as in
Russell v Russell ([1895] P 315, 64 LJP 105, 73 LT 295, 44 WR 213, 11 TLR 579, 39 Sol Jo 722, CA,
on appeal, [1897] AC 395, HL, 27 Digest (Repl) 356, 2948) and Edwards v Edwards ([1949] 2 All ER
145, [1950] P 8, [1949] LJR 1335, 113 JP 383, 65 TLR 419, 93 Sol Jo 450, 47 LGR 541, CA, 27 Digest
(Repl) 366, 3022); or because it lacks the element of intent to injure (as in the case of drunkenness or
association with other women); but, nevertheless, it may give good cause for leaving, as the cases

which I have cited earlier amply show. On the other hand, conduct which is not of a grave and
weighty character, and is for that reason not cruelty, does not give good cause for

225
leaving: see Yeatman v Yeatman ((1868), LR 1 P & D 489, 37 LJ P & M 37, 18 LT 415, 16 WR 734,
27 digest (Repl) 365, 3019). It is conduct of that kind to which I referred in Pike v Pike ([1953] 1 All ER
232, [1954] P 81, n, CA, 3rd Digest Supp) when I said ([1953] 1 All ER at p 235) that conduct less than
cruelty does not justify a spouse in leaving. In the present case, the conduct of the husband was, I
think, of a grave and weighty character, and the only reason why it was not cruelty was because there
was no intent to injure. It comes, therefore, within the earlier cases to which I referred.
Davies J in Dixon v Dixon ([1953] 1 All ER 910, [1953] P 103, Sol Jo 249, 3rd Digest Supp) had
drawn attention to an apparent conflict between Pike v Pike ([1953] 1 All ER 232, [1954] P 81, n, CA,
3rd Digest Supp) and Edwards v Edwards ([1949] 2 All ER 145, [1950] P 8, [1949] LJR 1335, 113 JP
383, 65 TLR 419, 93 Sol Jo 450, 47 LGR 541, CA, 27 Digest (Repl) 366, 3022) in which Bucknill LJ,
said ([1949] 2 All ER at p 149):
Counsel for the husband says that is his case, and that in the present case, the commissioner
having found that the husband was not cruel, there was no justification for the wife leaving. If Hodson
J, meant to say that, once a charge of cruelty has failed to be established, it is impossible for a wife to
establish grounds justifying her in refusing to live with her husband, with great respect to the learned
judge, it seems to me that that decision is inconsistent with the judgments in Russell v Russell ([1895]
P 315, 64 LJP 105, 73 LT 295, 44 WR 213, 11 TLR 579, 39 Sol Jo 722, CA, on appeal, [1897] AC 395,
HL, 27 Digest (Repl) 356, 2948) and Buchler v Buchler ([1947] P 25, [1947] 1 All ER 319, [1947] LJR
820, 176 LT 341, 111 JP 179, 63 TLR 100, Sol Jo 99, 45 LGR 442, CA, 27 Digest (Repl) 365, 2899)
which this court ought to follow. I myself think that that is not what the judge meant to say. I think he
meant to say in effect: Here is a case where the blows inflicted by the husband on the wife either
amounted to cruelty in that they injured her health, or were likely to injure it, or they were not of such a
nature. If they were not of such a nature then, there being no other evidence in the case of justify
desertion, the court ought not to say: Although they were, in effect, trivial blows, they justify her in
leaving the husband. If that is the view which the learned judge was taking, I do not think there is
anything in his judgment inconsistent with the judgments to which I have referred. Therefore, I think
that the point of law which counsel has raised fails.
It is clear from the observations of Denning LJ, in Timmins v Timmins ([1953] 2 All ER 187, 97 Sol Jo
419, CA, 3rd Digest Supp) that he was not differing from the view expressed by Bucknill LJ, in Edwards v
Edwards ([1949] 2 All ER 145, [1950] P 8, [1949] LJR 1335, 113 JP 383, 65 TLR 419, 93 Sol Jo 450, 47
LGR 541, CA, 27 Digest (Repl) 366, 3022) that a wife can establish conduct justifying her in refusing to live
with her husband although such conduct might not amount to cruelty.
In our view what the authorities decide is that a wife who alleges acts which, if true, would amount to
cruelty, but fails to establish cruelty, cannot afterwards call unproved cruelty, constructive desertion. It
cannot be the law that a husbands conduct, however serious, is not a matrimonial offence unless it amounts
to cruelty. If this were so the offence of constructive desertion would cease to exist, as it is difficult to think of
a case where a man who wishes to force his wife to leave him can do so without committing an act which
has some element of cruelty.
In this case the wife did not apply for maintenance on the ground of cruelty nor did she attempt to prove
cruelty; she led no evidence that her health was affected. What she said in effect was that her husband
adopted a course of conduct designed to force her to leave the house and that after she left, when she
attempted to return he refused to admit her.
The law relating to constructive desertion is put this way in 12 Halsburys Laws, 3rd End, p 246:
There is no substantial difference between the case of a man who intends to cease cohabitation
and leaves his wife and the case of a man who compels his wife by his conduct with the same
intention to leave him. This is the doctrine of constructive desertion.
We recognise that the husbands conduct if it falls short of cruelty must be conduct of a grave and
weighty nature. Mere frailty of temper is insufficient and so too are those quarrels and occasional outbursts
of anger which are part

226
and parcel of the happiness and vagaries of married life. But stamping on a womans abdomen,
dragging her from bed, expelling her from the house by force and threatening to kill her when she attempts
to return seem to us to be sufficiently grave and weighty to justify her failure to return. We do not think these
acts come within the class of case referred to in Timmins v Timmins ([1953] 2 All ER 187, 97 Sol Jo 419,
CA, 3rd Digest Supp), where the acts are either cruelty or nothing at all. There is no evidence that the

husband repented and endeavourd to effect a reconciliation or that he apologised for his behaviour. In the
absence of any such evidence we find that the appellant was guilty of constructive desertion.
Counsel for the respondent submitted that the appellant was estopped from arguing that his wife had
deserted him as there was a decision of the Supreme Court in favour of the wife. It appears that in 1958 the
husband petitioned for a dissolution of marriage on the ground of desertion; the wife cross-petitioned on the
ground of cruelty. The petition and cross-petition were dismissed.
Counsel for the appellant submitted that there was not sufficient evidence on the record for this court to
take cognisance of the previous proceedings. We agree with the submission. Neither the petition, crosspetition, nor the judges order were tendered and we have felt free to ignore the previous proceedings.
Had we decided that there was sufficient proof of the previous proceedings we would not have held that
the husband, having alleged desertion by his wife in 1948, and his petition having been dismissed, cannot
now rely on the same facts to establish that she had deserted him and that he has not deserted her.
A husband or wife who has had a petition praying for a decree nisi dismissed cannot bring another
petition based on the same facts; the doctrine of estoppel will apply, but a party whose suit has been
dismissed can always use the same facts as a defence. The appellant for example could not file another
petition for desertion on the same facts as previously pleaded, but if his wife attempted to divorce him he
could repeat the same facts to show that he had not deserted her. See Bright v Bright ([1953] 2 All ER 939,
[1954] P 270, 117 JP 529, 97 Sol Jo 729, 3rd Digest Supp) where Willmer J, said ([1954] P at p 284):
I think that that argument rests on a misapprehension and on a failure to distinguish between an
estoppel as against a party charged with an offence and an estoppel as against a party putting forward
a charge against the opposite party. It is one thing to say that the respondent is not estopped from
denying charges made by the petitioner; that is to say, that the petitioner cannot in this court get relief
simply because the respondent is estopped from denying the charges. In that case, the public interest
no doubt does intervene to see that relief is not improperly obtained by a petitioner merely through
some technical rule. But it is quite another thing to say that a petitioner, who is the party bringing the
charges, is entitled to persist in repeating allegations which have already been the subject of previous
proceedings, and which have already been determined against him or her, merely to obtain relief for
himself or herself. In such circumstances, as I see it, no interest of the public is infringed by saying
that the petitioner is estopped per rem judicatam from repeating allegations which have previously
been the subject of judicial determination.
On the other hand if there was sufficient material before us we would have had to consider whether the
wife was not estopped. Although her petition was founded on cruelty and not constructive desertion it may
well be that the dismissal of her petition would have been a bar unless she had made a bona fide offer to
return. The record, however, imperfect as it is, shows that she alleged cruelty but gave no evidence of it and
we have the impression that the issues were never placed before the court and the facts proved in these
proceedings were never the subject of a judicial decision.
As we have found the husband guilty of a matrimonial offence his common law liability to maintain his
wife subsists. The fact that she appears to have

227
made no request for maintenance is immaterial. The onus is on him to prove that he is excused from
maintaining her as in Springer v Springer ([1952] 1 All ER 373), where the separation was consensual. See
also Papadopoulos v Papadopoulos ([1930] P 55, 99 LJP 1, 142 LT 237, 94 JP 39, 46 TLR 44, 73 Sol Jo
797, 29 LGR 73, DC).
For the above reasons the appeal is dismissed with costs fixed at $25.00.
Appeal dismissed.

(1959), 1 WIR 228

Williams v The Attorney-General

SUPREME COURT OF BARBADOS
HANSCHELL J
19 MAY 1959

Practice Successful defendant Submission in limine No application to dispose before trial Rules of
the Supreme Court [B], O 23, r 1.

Costs Discretion of trial judge Principles.

The plaintiffs action against the defendant was dismissed as a result of a submission in limine that the court
had no jurisdiction to entertain the proceedings.
It was submitted for the plaintiff that there should be no order as to costs as it was necessary to institute the
action due to the defendants conduct; that the defendant had not applied to set down the preliminary point
for hearing as required by O 23, r 1; that the action was dismissed on the merits without evidence and
before the argument was completed.
Held: (i) There were no facts proved which could justify the court exercising its discretion to deprive the
successful defendant of his costs.
(ii) Order 23, r 1, permitted either party to set down a preliminary point of law for disposal before trial and the
defendants failure to do so did not by itself institute a sufficient ground for depriving him of costs.
(iii) The costs would be limited to the time spent in the preliminary submission. The argument on the merits
was at the request of the parties.
Order accordingly.
No cases referred to
W H A Hanschell (instructed by Cottle Catford & Co) for the plaintiff
D Williams (instructed by Queens Solicitor) for the respondent
HANSCHELL J. On 27 February 1959, I delivered my judgment in this matter deciding the point of law
raised by paragraph 7 of the Answer and dismissing this action. At the request of counsel for the plaintiff I
reserved the question of costs so that counsel might be heard.
The defendant has asked for his costs for the argument on the preliminary points, and has suggested
that there should be no order as to costs for the argument on the merits.
The plaintiff has submitted that in this matter there are special circumstances which should be taken
into consideration for the exercise of the discretion in the plaintiffs favour, and that the practice rule of costs
following the event should not be followed.
Costs are in the discretion of the court and the judge ought not to exercise this discretion against a
successful party except for some reason connected with the case.

228
In the proper exercise of this discretion, and from the argument for the plaintiff, three questions arise for
determination.
Firstly, it has been argued for the plaintiff that before the importation of any of these trailers, the
defendant by his agent, one of the Customs officers, informed the plaintiff that such trailers were not exigible
to import duty as long as they were for use exclusively in the sugar industry; that the plaintiff obtained orders
for trailers to be sold at a price worked out free of duty and imported 6 trailers for sale at such price; that
the trailers arrived, and the Comptroller demanded duty on them. A dispute arose and in order to avoid
further warehouse charges, the plaintiff was forced to prepay the disputed duty, having already incurred
heavy warehouse charges; that this involved the plaintiff in financial loss and damage suffered through the
Crowns servants. It appears necessary to consider whether the plaintiff acted reasonably in offering these
trailers at prices worked out exclusive of duty, and importing them solely on the information of a Customs
officer. From the available evidence it does not appear to me that the plaintiff consulted the Comptroller, nor
that he took any legal advice before importation. He appears to have acted on the telephone
communication with a Customs officer, whose name is not stated, and on the fact that the plaintiffs Customs
clerk had shown a catalogue of cane carts to a Customs officer at the Customs, and not to the Comptroller.
For the plaintiff to have so acted on such information, in the importation of such trailers, where the disputed
duty now in question appears to be about fourteen hundred dollars, I do not consider reasonable conduct in
these circumstances. After the dispute arose, the plaintiff was referred to s 165 of the Trade Act, 1910 [B],
by the Comptroller and by the Attorney-General. On 4 February 1958, the plaintiff requested the Comptroller
to refer the question in dispute to the Governor-in-Executive Committee as provided by the said s 165. On
18 March 1958, the plaintiffs solicitors formally requested the return of the monies paid to the Comptroller in
this matter, and informed the Comptroller that in the circumstances the plaintiff would be advised in
accordance with counsels instructions to institute appropriate legal proceedings immediately. On 22 March
1958, the plaintiff was asked whether he wished the reference to the Governor-in-Executive Committee to

proceed. I am not aware that this question has been answered. There is no evidence as to whether the
Governor-in-Executive Committee has given any decision on the dispute in question. On 27 March 1958,
this action was filed. These are not circumstances in which the defendant may reasonably be held to have
brought this action on himself nor can I find in them conduct of the defendant amounting to special
circumstances on any other ground in which the discretion should be exercised to deprive the defendant,
successful in his argument as to jurisdiction, of his costs.
Secondly, it has been argued for the plaintiff that the defendant proceeded to trial, and at the trial,
argued two points of law which had been raised on the pleadings, before the argument on the merits,
without application to set them down and dispose of them before the trial, as is provided by O 23, r 1, of the
Rules of the Supreme Court, 1958 [B], and that the defendant thereby increased the costs of litigation. In
support of this argument it has been submitted for the plaintiff that O 23, r 1, must be interpreted as
providing that such application is to be made by the party in whose pleadings the point of law is raised; that
the points of law argued at the beginning of the trial were raised in the pleadings of the defendant, and that it
was his duty to apply under O 23, r 1, in order to save costs; that he has failed so to do and that he has
thereby increased the costs of this litigation.
I am unable so to interpret the provisions of O 23, r 1. In my opinion this rule clearly provides that either
party may apply to set down any point of law raised on the pleadings for disposal before trial. Neither party
in this action so applied. At the very beginning of the trial it was fully appreciated by both

229
counsel that there were three points raised in the Answer that were on the question of jurisdiction, and
that they would be argued first. Immediately after the appearances were entered, counsel for the plaintiff
informed the court that his learned friend was raising three preliminary points which he would argue first; that
before that argument was begun the plaintiff desired to make certain minor amendments to which counsel
for the defendant was consenting, in order to include the sixth trailer and that this was by way of a friendly
action. In view of my interpretation of O 23, r 1, and of the circumstances attendant on this court
entertaining argument on the preliminary points before the merits were entered upon, I do not consider it
would be just and equitable to lay blame on the defendant for failure to apply under the said rule, and so
deprive him of his costs in respect of the preliminary point, which he successfully argued.
Thirdly, it has been argued for the plaintiff that this court entertained argument on the merits, and
terminated the proceedings without completion of that argument, and dismissed this action without
adjudication on all the issues raised; that in so doing this court misdirected itself in the exercise of a
discretion which it had, to determine all of the issues raised on the merits, or that this court failed to exercise
such discretion, or thirdly, failed to advert to the discretion which it had. On this question the plaintiff has
argued that he was taking part in a trial which was going forward, that he was locked in battle in a trial in
which all the issues were being fought, and all were to be adjudicated; that at this stage further hearing was
adjourned until the question of jurisdiction should be decided by the court; and finally that counsel for the
plaintiff had agreed and consented to nothing, except that the trial should be governed by the Rules of the
Supreme Court of this Island. It is submitted for the plaintiffs that when the further hearing of the merits was
adjourned, that he (counsel for the plaintiff) was the only person who was misled as to what was taking
place, and that if the court finds that there was something irregular and that it was the fault of the defendant
or of the court, then an unbalance has been created, and that it should be adjusted by the order as to
costs.
As I have stated above at the beginning of the trial, counsel for the plaintiff informed me that there were
three points which counsel for the defendant would argue first. That this was a friendly action, consisting
mostly of legal argument. Counsel for the plaintiff then requested leave for certain amendments to which the
defence consented, and the plaintiff consented to similar consequential amendments in the Answer as the
defence deemed requisite. An order was made for the Amended Bill of Complaint and consequential
Amended Answer to be filed. At this stage and before any argument on the jurisdiction points had been
begun, the court was requested to hear the arguments on the merits without awaiting the decision on the
points in limine My record does not show by which party this application was made, but I definitely
remember that it was made on behalf of both parties, and that the court made a point of ensuring that it was
to be done with the consent of both parties. The court was informed that it was with consent of both parties.
I quote my note made at the time with consent of both sides the argument on the merits will be made
without awaiting decision on points in limine. Thus was recorded the decision of the court on this
application made, and consented to, by both parties.
When this application was made, I understood that the argument on the merits was expected to take but
a short time. After the argument on the preliminary points had been concluded, counsel for the plaintiff
opened his case on the merits, and the argument on the merits proceeded. There arose two procedural
points which required rulings, and in the course of argument on them, the trial became protracted. At this
stage the court directed the attention of both counsel to the fact that at their request and with their consent
the question of jurisdiction had not yet been decided. It then became apparent that counsel for the plaintiff
expected the court to adjudicate on all issues raised

230
even if the court found that it had no jurisdiction. This court had never intimated that it would do any
more than hear the arguments on the merits as it had been requested to do. Both parties having consented
to this procedure, the court acceded to this request in order to accommodate counsel and the parties. When
the difference arose between counsel as to the purpose and effect of this procedure, the court adjourned
further hearing as the question of costs was involved.
I do not find that any special circumstances exist in the procedure which was here adopted which would
operate against the defendant to deprive him of the costs of his successful argument as to jurisdiction, or to
lead the court to order that he should pay any of the plaintiffs costs. Both parties requested and consented
to the procedure which was followed and the court could not reasonably foresee that the defendant
expected an adjudication on the merits even if the court found that it had no jurisdiction, especially in view of
the provisions of s 165 of the Trade Act, 1910 [B], under which the plaintiff had already requested the
dispute to be referred to the Governor-in-Executive Committee.
In addition to the three particular questions with which I have dealt, and which I consider to be the main
grounds of the plaintiffs argument, I have taken into consideration all of the facts presented to the court
which lead up to, and are connected with this case, together with the course of these proceedings which I
have observed, and I can find no reason connected with the case, why the defendant should not be awarded
his costs up to the end of the argument on the preliminary point. I am of the opinion that there should be no
order as to costs in respect of the argument on the merits up to the time when further hearing was adjourned
on 4 September 1958, in view of the circumstances in which it took place, and in which further hearing was
adjourned.
I accordingly award the defendant his costs to the end of the arguments on the preliminary points,
together with his costs of attending to receive the judgment on 27 February 1959, and the costs of this
argument as to costs.
This argument as to costs was adjourned into Chambers at the request of counsel for the plaintiff and
with the consent of counsel for the defendant. I consider this a proper case for counsel to attend in
Chambers and I so certify in accordance with O 49, r 37, of the Rules of the Supreme Court [B].
In the course of this argument as to costs counsel for the plaintiff has invited me to review the judgment
which I delivered in this matter on 27 February 1959, and to vary the said judgment if I find that the law and
facts so merit. I have considered this question and I find no good reason to vary any part of the said
judgment.
Order accordingly.

231
(1959), 1 WIR 232

Caesar v The British Guiana Mine Workers Union

SUPREME COURT OF BRITISH GUIANA
BOLLERS J AG
17, 23, 31 DECEMBER 1958, 30 APRIL 1959

Practice Trade union Action concerning or touching property of trade union Claim brought by plaintiff
against trade union including claim for costs Whether necessary for trustees of the trade union to be
joined as defendants Trade Union Ordinance, Cap 113 [BG], s 20.
Trade Union Union sued by plaintiff in his individual right Remedy sought to declare null and void
because of irregularity that which members of union can make regular Rule in Foss v Harbottle applied
Such action can only be brought in the name of the union itself.
Although the trustees of a registered trade union may be made liable in an action of tort or otherwise,
touching on or concerning the property of the union (except in respect of any tortious act committed by or on
behalf of the union in contemplation or in furtherance of a trade dispute order), it is not necessary for them to
be joined as defendants, for a second action can always be brought by the plaintiff in order to obtain
equitable execution against the property of the union held by the trustees.
The plaintiff in a writ filed against the defendants, a registered trade union, sought a declaration that the
conduct of the elections of the British Guiana Mine Workers Union held between the 31st day of October
1958, and the 3rd November 1958, and the subsequent declaration of the polls on the 16th day of

November 1958, are irregular null and void with certain consequential orders. The plaintiff did not claim
that his own individual rights as a member of the union had been infringed.
Held: the plaintiff was attempting to do that which he is precluded from doing by the rule in Foss v Harbottle
(7), that is, he was seeking to declare null and void by reason of irregularity that which by a simple majority
of the members of the union can be made regular if irregular, or legal if illegal. Such an action must be
brought in the name of the union itself.
Writ struck out; service of writ set aside.
Editorial Note: As to rights of action and procedure in respect of Trade Unions, see 32 Halsburys Laws
(2nd Edn), pp 529-533, paras 829-831; and for cases see 43 Digest, p 101, para 1048, p 125, para 1277,
and pp 126-127, paras 1286-1297.
Cases referred to
Craig v Kanssen [1943] 1 KB 256, [1943] 1 All ER 108, 112 LJKB 228, 168 LT 38, 87 Sol Jo 48, CA, 2nd
Digest Supp
Linaker v Pilcher (1901), 70 LJKB 396, 84 LT 421, 49 WR 413, 17 TLR 256, 45 Sol Jo 276
Roberts v Page (1876), 1 QBD 476, 45 LJQB 601, 35 LT 325, 25 Digest 335, 370
Vacher & Sons, Ltd v London Society of Compositors [1913] AC 107, 82 LJKB 232, 107 LT 722, 29 TLR 73,
affg, [1912] 3 KB 547, CA, 43 Digest 123, 1259
Taff Vale Ry Co v Amalgamated Society of Railway Servants (1900), [1901] AC 426, 70 LJKB 905, n, 83 LT
474, 50 WR 44, 44 Sol Jo 714, revsd, [1901] 1 KB 170, CA, restored, [1901] AC at p 434, HL, 43 Digest
92, 957
Wajidally v Butler and Man-Power Citizens Association [1946] BGLR 17

232
Foss v Harbottle (1843), 2 Hare, 461, 67 ER 189, 9 Digest (Repl) 662, 4382
MacDougall v Gardiner (1875), 10 Ch App 606, 32 LT 653, 23 WR 846, LJJ, 9 Digest (Repl) 622, 4150
Cotter v National Union of Seamen [1929] All ER Rep 342, [1929] 2 Ch 58, 98 LJ Ch 323, 141 LT 178, 45
TLR 352, 73 Sol Jo 206, 43 Digest 103, 1087
Browne v La Trinidad (1887), 37 ChD 1, 57 LJ Ch 292, 58 LT 137, 36 WR 289, 4 TLR 14, CA, 9 Digest
(Repl) 552, 3651
Burland v Earle [1902] AC 83, 71 LJPC 1, 85 LT 553, 50 WR 241, 18 TLR 41, 9 Mans 17, PC, 9 Digest
(Repl) 564, 3727
Mozley v Alston (1847), 1 Ph 790, 4 Ry & Can Cas 636, 16 LJ Ch 217, 9 LTOS 97, 11 Jur 315, 41 ER 833,
LC, 9 Digest (Repl) 715, 4740
Bloxam v Amalgamated Marine Workers Union (unreported)
Kaye v Croydon Tramways Co, [1898] 1 Ch 358, 67 LJ Ch 222, 78 LT 237, 46 WR 405, 14 TLR 244, 42 Sol
Jo 307, CA, 10 Digest (Repl) 1240, 8725
Edwards v Halliwell [1950] 2 All ER 1064, 94 Sol Jo 803, CA, 2nd Digest Supp
Summons
Summons to set aside service of writ and strike out writ.
The plaintiff filed a writ of summons against the defendants, a registered trade union, claiming a
declaration that the conduct of the elections of the union held between 31 October 1958, and 3 November
1958, and the subsequent declaration of the polls on 16 November 1958, are irregular, null and void and for
consequential orders. The defendants applied by way of summons to have the service of the writ set aside
on the ground that the writ had been addressed to and served upon one W E Bobb, General Secretary,
British Guiana Mine Workers Union, and to have the writ struck out on the following grounds:
(i) that the court had no jurisdiction to determine the plaintiffs claim in that the claim included a
claim for costs against the union which could only be recovered from the property of the union and
could only be made in a suit against the trustees of the union;
(ii) that the plaintiff did not claim that his own individual rights as a member of the union had been
infringed but was seeking to declare null and void by reason of irregularity that which by a simple
majority of the members of the union could be made regular, if irregular, or legal, if illegal, and that
such an action could only be brought in the name of the union itself.

A Chase (instructed by L L Perry) for the plaintiff

L A Luckhoo QC (instructed by S M A Nasir) for the defendants

Cur adv vult

BOLLERS J. This was an application by way of summons for an order:
(a) that service of the writ of summons in the above matter upon Wendell Eyre Bobb, the General
Secretary of the defendant Trade Union, be set aside, or
(b) that the said writ of summons be struck out.
Under (a) and (b) counsel for the defendants submitted that the application was brought under O 10, r
20, of the rules of the Supreme Court, 1955 [BG], on the ground that the service of the writ was irregular.
Order 10, r 20 (2), states:
A defendant shall be entitled either before entering appearance, or within seven days after entering
appearance, to take out and serve a summons or serve notice of motion to set aside the service upon
him of the writ or notice

233
of the writ, or to discharge the order authorising such service or to strike out the writ on the ground
that:
****
(ii) the issue or service of the writ was irregular.
Counsel pointed out that under O 3, r 2, every writ of summons shall contain in the body thereof the
name and place of residence or business of the defendant as far as known. In this writ of summons this was
not done and in the body of the writ instead of the name of the defendants and their place of business being
stated, the writ was addressed to one W E Bobb, General Secretary of the British Guiana Mine Workers
Union, registered office McKenzie, Demerara River. He argued that if W E Bobb were to receive the writ
and do nothing, could the court award judgment against the defendant union when no writ had been
addressed to the defendant?
At p 11 of the Annual Practice 1957, it is stated that the address of the defendant is a necessary part of
a writ in personam, but a wrong address or a mis-description as to the defendants business is not, when the
defendant is not misled or prejudiced, an irregularity sufficient to warrant the setting aside of the writ and
service.
Counsel urged that this was not a wrong address or a mis-description as to the defendants business,
but a clear violation of the rules whereby the writ was addressed to some person other than the defendant.
Counsel for the respondent, in reply, urged that one must read the whole of the paragraph under the
name of the addressee in the body of the writ and as the defendant unions name and address appears
therein, then the writ is properly addressed. He argued that if the Marshal had delivered the writ to the office
the court would not be in a position to know if it had been drawn to the attention of the duly authorised officer
of the union.
The immediate answer to these two points argued in the reply by counsel for the respondent are:
(i) that the writ is addressed to W E Bobb, the secretary of the union, not to the union itself, which is
the defendant, and
(ii) no doubt would have arisen as to whether the writ had been drawn to the attention of the duly
authorised officer of the union if the writ had been addressed to the defendant union in care of the
secretary as in the case of a corporationsee O 7, r 13 (a trade union being a quasi-corporation).
Counsel, in reply, further argued that even if there was an irregularity, providing there was no prejudice
to the defendant, there was provision under O 54, r 1, for the amendment of the writ.
Order 54, r 1, in my opinion, is discretionary, as it states that:
Non-compliance with the rules shall not render any proceedings void unless the judge shall so
direct, but such proceedings may be set aside either wholly or in part as irregular, or amended.
At p 1598 of the Annual Practice 1957, it is stated that:
The line between a nullity and an irregularity is difficult to draw, but an order can properly be
described as a nullity if it is something which a person affected by it is entitled to have set aside ex
debito justitiae, and could be set aside by the court in the exercise of its inherent jurisdiction. (Craig v
Kanssen ([1943] 1 KB 256, [1943] 1 All ER 108, 112 LJKB 228, 168 LT 38, 87 Sol Jo 48, CA, 2nd
Digest Supp) (1943), 168 LT 38, CA.)

It is submitted that there is an irregularity when a party has power to do something but does it wrongly
or in a wrong manner, and a nullity when he has no power to do the particular act. In the instant case the
plaintiff had no authority whatsoever to address the writ to the General Secretary of the union. Under the
Rules of the Supreme Court he was bound to address the writ to the

234
defendant (O 3, r 2). I did not overlook the rule that whenever the court is satisfied that substantial
justice requires any of its own regulations to be waived or any slip to be remedied, it will interfere for the
purpose. In view, however, of the particular irregularity which in my view amounted to a nullity and my
subsequent agreement with counsel for the applicant that the writ of summons should be struck out on
another ground, I did not consider this a fit case for dispensing with the strictness of the rules. I am fortified
in that opinion by the Annual Practice 1957, which states at p 80:
The registration of a Trade Union under the Acts renders it capable of being sued in its registered
name, and service should be made by leaving the process at the registered office of the union. (Trade
Union Act, 1871 [UK], s 9.)
As the local rules were silent on this point of procedure the English practice should have been followed.
The issue and service of the summons were therefore irregular.
Counsel for the defendant next submitted under (b) that the court had no jurisdiction to determine the
plaintiffs claim because:
Inasmuch as the claim includes a claim for costs against the defendant union which could only be
recovered from the property of the union, the same ought to have been made in a suit against the
trustees of the union.
He referred to s 20 of the Trade Union Ordinance, Cap 113 [BG], whereby the trustees of any union are
empowered to bring or defend any action or suit in any court of law touching or concerning the property, right
or claim to property of the union. He urged that as the plaintiff sought an order for costs it concerned the
property of the union. He cited the case of Linaker v Pilcher ((1901), 70 LJKB 396, 84 LT 421, 49 WR 413,
17 TLR 256, 45 Sol Jo 276) (70 LJKB at p 401) where it was pointed out that the word property in s 9 of
the Trade Union Act, 1871 [UK], which corresponds to s 20 of Cap 113, is not to be construed strictly as it
means property generally, and (per Matthew J.):
a good test in order to determine whether the action is one touching or concerning the property of
the union, is whether the action is one to add to the assets of the union or again one that threatens any
of the assets of the union.
Counsel argued that the claim for costs would of necessity threaten the assets of the union. There
seems to be some support for this contention in Roberts v Page ((1876), 1 QBD 476, 45 LJQB 601, 35 LT
325, 25 Digest 335, 370) which was a decision under a similar provision in s 19 of the Friendly Societies Act
(18 & 19 Vict, Cap 63) [UK] where there was a claim by a member of the society against the society itself. A
compromise was arrived at between the members solicitor and the society whereby the latter agreed to pay
the former certain costs and charges. Later the solicitor sued the secretary of the society for these costs
and charges which had not been paid and it was held that the action was one touching the right of the
society. Lush J, pointed out that right means something beyond property or claim to property.
Linaker v Pilcher ((1901), 70 LJKB 396, 84 LT 421, 49 WR 413, 17 TLR 256, 45 Sol Jo 276) (70 LJKB at
p 401) was decided in 1901 before the introduction of the Trade Disputes Act, 1906 [UK], s 4. It was an
action against the trustees for libel and it was held that as the property in the newspaper was vested in the
trustees they were liable, and that they were entitled to be indemnified out of the funds of the society.
In Vacher & Sons, Ltd v London Society of Compositors ([1913] AC 107, 82 LJKB 232, 107 LT 722, 29
TLR 73, affg, [1912] 3 KB 547, CA, 43 Digest 123, 1259), decided after the introduction of s 4 of the Trade
Disputes Act of 1906 [UK], it was held that an action for libel or conspiracy to libel relating to matters
affecting the trade union and its members as such would not therefore lie against a trade union. The
position of the trustees, however, by s 4 (2) of the Trade Disputes Act, 1906 [UK],

235
and s 7 (2) of Cap 113 [BG], remained the same, except in respect of any tortious act committed by or
on behalf of the union in contemplation or in furtherance of a trade dispute, and it is submitted by the learned
author of Sophians Trade Union Law And Practice that there is nothing to prevent the trustees of a trade
union from being sued in an action of tort for acts committed by or on behalf of the union, provided of course
the tort touches or concerns the property of the union, and they are not acts in contemplation or furtherance
of trade disputes. As Farwell LJ, put it in Vachers case (Vacher & Sons, Ltd v London Society of

Compositors [1913] AC 107, 82 LJKB 232, 107 LT 722, 29 TLR 73, affg, [1912] 3 KB 547, CA, 43 Digest
123, 1259) ([1912] 3 KB at pp 560-561):
The liability of the trustees under s 9 (Trade Union Act, 1871 [UK]) is confined to actions in respect
of property, and does not extend to actions of tort, apart from property, eg actions for obstructing
ancient lights or for nuisance to their neighbours premises would lie against them but libel would not.
It is important to point out that in Linaker v Pilcher ((1901), 70 LJKB 396, 84 LT 421, 49 WR 413, 17
TLR 256, 45 Sol Jo 276) the trustees were made liable in an action for libel on the ground that the property
in the newspaper was vested in the trustees, in that the newspaper was registered in the names of the
trustees of the union as the proprietors thereof. This aspect of the matter as to the liability of the trustees in
actions for tort must not be allowed to obscure the point in the instant case as to whether the trustees ought
or ought not to have been joined as defendants. The present action is not one of tort and it has been made
clear by the Taff Vale case (Taff Vale Ry Co v Amalgamated Society of Railway Servants (1900), [1901] AC
426, 70 LJKB 905, n, 83 LT 474, 50 WR 44, 44 Sol Jo 714, revsd, [1901] 1 KB 170, CA, restored, [1901] AC
at p 434, HL, 43 Digest 92, 957) that a trade union registered under the Trade Union Acts, 1871 and 1876
[UK], may be sued in its registered name.
In this case it was considered that a trade union was a legal entity and a quasi-corporation. Lord
Lindley in his judgment stated:
Further, it is in my opinion equally plain that if the trustees in whom the property of the society is
legally vested were added as parties, an order could be made in the same action for the payment by
them out of the funds of the society of all damages and costs for which the plaintiff might obtain
judgment against the trade union.
This dictum was approved by Lord Haldane in Vachers case (Vacher & Sons, Ltd v London Society of
Compositors [1913] AC 107, 82 LJKB 232, 107 LT 722, 29 TLR 73, affg, [1912] 3 KB 547, CA, 43 Digest
123, 1259) where he stated:
The Legislature appears to have desired to draw a distinction between the union and its trustees
and to preserve the liability of the trustees under s 9 [UK] (s 20 of Cap 113 [BG]), even in the case of
tortious acts committed by the union, damages arising out of which might, as pointed out by Lord
LINDLEY in the Taff Vale case (Taff Vale Ry Co v Amalgamated Society of Railway Servants (1900),
[1901] AC 426, 70 LJKB 905, n, 83 LT 474, 50 WR 44, 44 Sol Jo 714, revsd, [1901] 1 KB 170, CA,
restored, [1901] AC at p 434, HL, 43 Digest 92, 957), have been made effective against property in the
hands of the trustees.
It follows, therefore, that a registered society may be sued in its registered name, and if the trustees
were made defendants in such action an order could be made by the court binding on them for the payment
by them of the damages or costs recovered out of the funds of the society in their hands, so that it is not at
all necessary that, judgment being recovered against the union, a second action founded on that judgment
should be brought against the trustees. Equitable execution against the property of the union held by the
trustees could be obtained in the original suit if they were made parties to it.
The question as to whether the trustees should be joined as defendants in actions against the
registered trade union where the action is one concerning or touching the property of the union is of mere
academic interest, since for all practical purposes, if a plaintiff wishes to have his judgment satisfied out of
the funds of the union it will be necessary for him to sue the trustees, or at least to make them parties to the
action (SOPHIANS TRADE UNION LAW AND PRACTICE at p 313).

236
Boland J, in Wajidally v Butler and Man-Power Citizens Association ([1946] BGLR 17) held:
A registered trade union may be sued in its registered name, and there is no necessity for an
action against a registered trade union to take the form of a representative action, that is to say, an
action against specified members or officers of the union for and on behalf of all members of the union,
nor is it necessary to join the trustees so as to be enabled to get satisfaction of a judgment out of the
funds of the trade union.
In the particular case he held that the trustees had not been joined as defendants.
My final conclusion to be placed on the interpretation of s 20 of Cap 113 is, that although the trustees
may be made liable in an action of tort or otherwise (except in respect of any tortious act committed by or on
behalf of the union in contemplation or in furtherance of a trade dispute order) (under s 4 (2) of the Trade
Disputes Act of 1906 [UK] and s 7 (2) of Cap 113 [BG]) touching on or concerning the property, right, or

claim to property of the union, it is not necessary for them to be joined as defendants, for a second action
could always be brought by the plaintiff in order to obtain equitable execution against the property of the
union held by the trustees. The applicant therefore fails on this submission.
The final point made by counsel for the defendants was that the plaintiff was precluded from suing the
union in his individual right in the writ by virtue of the rule in Foss v Harbottle ((1843), 2 Hare, 461, 67 ER
189, 9 Digest (Repl) 662, 4382). In support of his submission counsel cited MacDougall v Gardiner ((1875),
10 Ch App 606, 32 LT 653, 23 WR 846, LJJ, 9 Digest (Repl) 622, 4150) and Cotter v National Union of
Seamen ([1929] All ER Rep 342, [1929] 2 Ch 58, 98 LJ Ch 323, 141 LT 178, 45 TLR 352, 73 Sol Jo 206, 43
Digest 103, 1087).
The well-known rule in Foss v Harbottle ((1843), 2 Hare, 461, 67 ER 189, 9 Digest (Repl) 662, 4382)
can be shortly stated as, that the court will not interfere in the internal affairs of a company when the
irregularity complained of can be rectified by the company itself. It was laid down in this case that the court
has no jurisdiction to do what it is for the company itself to do according to the provisions of its articles. If a
general meeting is wanted, the directors have power to call it, but the court cannot compel directors to do
something they feel is not in the interests of the company. If the directors do not call a meeting, it is open to
the shareholders to call it as provided in the articles, and if the shareholders do not wish to do so, the court
has no power to take the management out of the hands of the directors. (MacDougall v Gardiner ((1875), 10
Ch App 606, 32 LT 653, 23 WR 846, LJJ, 9 Digest (Repl) 622, 4150).)
The opinion of the majority in any matter involving the internal management of the company and intra
vires the company therefore binds the minority. As the author of Shackletom On Mettings puts it:
Unless there is some provision to the contrary in the instrument by which a company is formed, the
resolution of the majority upon any question is binding on the minority and the company, and every
shareholder has a right to vote even though he may have an interest in the subject-matter which may
be in conflict with the interests of the company.
In Browne v La Trinidad ((1887), 37 ChD 1, 57 LJ Ch 292, 58 LT 137, 36 WR 289, 4 TLR 14, CA, 9
Digest (Repl) 552, 3651) the court followed the principle laid down in Foss v Harbottle ((1843), 2 Hare, 461,
67 ER 189, 9 Digest (Repl) 662, 4382) that it would not interfere for the purpose of forcing companies to
conduct their business according to the strictest rules, where the irregularity complained of could be set right
at any moment.
In Burland v Earle ([1902] AC 83, 71 LJPC 1, 85 LT 553, 50 WR 241, 18 TLR 41, 9 Mans 17, PC, 9
Digest (Repl) 564, 3727) it was held that:
It is an elementary principle of the law relating to joint stock companies that the court will not
interfere with the internal management of companies when they are acting within their powers. The
cases in which a minority can maintain such an action against the company are therefore confined to
those in which the acts complained of are of a fraudulent character or are beyond the powers of the
company.
In Cotter v National Union of Seamen ([1929] All ER Rep 342, [1929] 2 Ch 58, 98 LJ Ch 323, 141 LT
178, 45 TLR 352, 73 Sol Jo 206, 43 Digest 103, 1087), the principle laid down in Foss v

237
Harbottle (7) was extended to trade unions. The plaintiffs, who were members of a registered trade
union, commenced proceedings against the union and certain officials of the union. The plaintiffs purported
to sue on behalf of themselves and all the members of the union other than the named defendants. They
claimed a declaration that a certain special general meeting was invalidly convened, and that certain
resolutions, which were passed at that meeting, were invalid, and they sought injunctions restraining the
union from acting on those resolutions.
It was held by Romer J, that the defendant union was a legal entity capable of maintaining an action in
its own name and one in which the majority had power to bind the minority in matters not ultra vires the
union, and that it was, therefore, not open to the plaintiffs in the present action suing on behalf of themselves
and the other members to restrain the union from acting upon the resolutions, however irregularly the
meeting might have been summoned and conducted.
On appeal to the Court of Appeal the judgment of Romer J, was upheld on every aspect of the matter
and it was held that the resolutions were not ultra vires the trade union, and that as regards the alleged
irregularities the court must treat the union as a legal entity which held property, and was governed by the
code contained in its rules, and therefore the rule laid down in Foss v Harbottle ((1843), 2 Hare, 461, 67 ER
189, 9 Digest (Repl) 662, 4382) and explained by Mellish LJ, in MacDougall v Gardiner ((1875), 10 Ch App
606, 32 LT 653, 23 WR 846, LJJ, 9 Digest (Repl) 622, 4150), applied. If, therefore, irregularities were
committed in the convening and conduct of the meeting at which the resolutions complained of were passed,
the matter could be regularised by the passing of fresh and effective resolutions. The court would therefore

refuse to interfere by injunction at the instance of the individual members of the union and the action must
be dismissed.
Romer J in his judgment, after pointing out that the resolutions were not ultra vires the union, stated the law
in the following passage which was quoted with approval in the Court of Appeal (141 LT at p 181):
The question then at once arises whether the plaintiffs can maintain this action so far as it seeks to
impeach the resolution having regard to what is usually referred to as the rule in Foss v Harbottle
((1843), 2 Hare, 461, 67 ER 189, 9 Digest (Repl) 662, 4382). That rule was discussed and explained
in the well-known judgment of Mellish LJ, in MacDougall v Gardiner ((1875), 10 Ch App 606, 32 LT
653, 23 WR 846, LJJ, 9 Digest (Repl) 622, 4150). He said this: I think it is a matter of considerable
importance rightly to determine this question, whether a suit ought to be brought in the name of the
company or in the name of one of the shareholders on behalf of the others. It is not at all a technical
question, but it may make a very serious difference in the management of the affairs of the company.
The difference is this: Looking to the nature of these companies, looking at the way in which their
articles are formed, and that they are not all lawyers who attend these meetings, nothing can be more
likely than that there should be something more or less irregular done at themsome directors may
have been irregularly appointed, some directors as irregularly turned out, or something or other may
have been done which ought not to have been done according to the proper construction of the
articles. Now, if that gives a right to every member of the company to file a bill to have the question
decided, then if there happens to be one cantankerous member, or one member who loves litigation,
everything of this kind will be litigated; whereas, if the bill must be filed in the name of the company,
then, unless there is a majority who really wish for litigation, the litigation will not go on. Therefore,
holding that such suits must be brought in the name of the company does certainly greatly tend to stop
litigation. In my opinion, if the thing complained of is a thing which in substance the majority of the
company are entitled to do, or if something has been done irregularly which the majority of the
company are entitled to do irregularly, or if something has been done

238
illegally which the majority of the company are entitled to do legally, there can be no use in having a
litigation about it, the ultimate end of which is only that a meeting has to be called, and then ultimately
the majority gets its wishes. Is it not better that the rule should be adhered to that if it is a thing which
the majority are the masters of, the majority in substance shall be entitled to have their will followed? If
it is a matter of that nature, it only comes to this, that the majority are the only persons who can
complain that a thing which they are entitled to do has been done irregularly; and that, as I understand
it, is what has been decided by the cases of Mozley v Alston ((1847), 1 Ph 790, 4 Ry & Can Cas 636,
16 LJ Ch 217, 9 LTOS 97, 11 Jur 315, 41 ER 833, LC, 9 Digest (Repl) 715, 4740) and Foss v Harbottle
((1843), 2 Hare, 461, 67 ER 189, 9 Digest (Repl) 662, 4382).
He went on to point out that in the case which he was then deciding the plaintiffs purported to sue on
behalf of themselves and all other members of the union but could not sue on behalf of those members who
were defendants. They therefore did not represent the whole union but were nevertheless seeking to
restrain the union from doing certain acts which they could lawfully do. The union, whether or not the
meeting was capable of passing the resolutions, was desirous of doing the acts in question. He concluded
that if the union were an incorporated company the present action could not be maintained.
The learned judge went on to state that there were important differences between a registered trade
union and an incorporated company but those differences were not material to the present question. He
cited the case of Bloxam v Amalgamated Marine Workers Union (unreported) where there was an attempt
by two members of the union to quarrel with the validity of the appointment of the officers of the union. The
judge in that case recalled that they were raising a matter not ultra vires the union, but were raising the
question that the union had done irregularly that which they might have done regularly. He concluded the
point by declaring that it was his view that the Foss v Harbottle ((1843), 2 Hare, 461, 67 ER 189, 9 Digest
(Repl) 662, 4382) decision would operate so as to prevent the defendants bringing an action in respect of
such matters in their own name as the only persons who can properly complain of it being a union.
The learned judge (Romer J) then dealt with the case of Kaye v Croydon Tramways Co ([1898] 1 Ch
358, 67 LJ Ch 222, 78 LT 237, 46 WR 405, 14 TLR 244, 42 Sol Jo 307, CA, 10 Digest (Repl) 1240, 8725)
and concluded:
But except in cases where the majority or, rather, a mere majority, cannot properly authorise the
act so as to bind the minority, it is not open to individual shareholders to maintain an action in their own
names.

As counsel for the defendants pointed out, the present action by the plaintiff and the relief sought is not
ultra vires the union. The complaint of the plaintiff is essentially one of and for the internal management of
the company, redress for which the plaintiff had recourse to the rules of the trade union.
Rule 2 (c) exists for the purpose of settling by negotiation of disputes between members of the unions.
Rule 4 lays it down that the supreme authority of the union shall be vested in the annual conference of
delegates and subject to that authority the union shall be governed by the Executive Council.
Rule 17 states that the decisions of the Executive Council are binding on all members of the union.
Rule 18 provides for the interpretation of the rules of the Executive Council.
There is in existence therefore a body of the union itself to which the plaintiff could have addressed his
complaint and sought redress for any irregularity that may have taken place in the conduct of any election or
meeting of the union.
In Edwards v Halliwell ([1950] 2 All ER 1064, 94 Sol Jo 803, CA, 2nd Digest Supp) it was held that
individual rights not within the scope of Foss v Harbottle ((1843), 2 Hare, 461, 67 ER 189, 9 Digest (Repl)
662, 4382) cannot be altered by a majority decision in a general meeting. The Court of Appeal held in this
case that the rights infringed

239
were individual rights of the members and that therefore the defence of the union that the rule in Foss v
Harbottle ((1843), 2 Hare, 461, 67 ER 189, 9 Digest (Repl) 662, 4382) applied failed.
Jenkins LJ summarised it in this way:
It seems to me the rule in Foss v Harbottle ((1843), 2 Hare, 461, 67 ER 189, 9 Digest (Repl) 662,
4382) has no application at all, for the individual members who are suing sue, not in the right of the
union, but in their own right to protect from invasion their own individual rights as members.

Jenkins LJ in his judgment pointed out that this exception to the Foss v Harbottle ((1843), 2 Hare, 461, 67
ER 189, 9 Digest (Repl) 662, 4382) rule was stated by Romer J, in Cotter v National Union of Seamen
([1929] All ER Rep 342, [1929] 2 Ch 58, 98 LJ Ch 323, 141 LT 178, 45 TLR 352, 73 Sol Jo 206, 43 Digest
103, 1087) that the rule did not prevent an individual member from suing if the matter in respect of which he
was suing was one which could validly be done or sanctioned not by a simple majority of the members of the
company or association, but only by some special majority as, for instance, in the case of a limited company
under the Companies Act [UK], a special resolution duly passed as such.
In the instant case the plaintiff does not claim that his own individual rights as a member of the union
have been infringed; he is attempting to do that which he is precluded from doing by the rule in Foss v
Harbottle ((1843), 2 Hare, 461, 67 ER 189, 9 Digest (Repl) 662, 4382), that is, he is seeking to declare null
and void by reason of irregularity that which by a simple majority of the members of the union can be made
regular if irregular, or legal if illegal. Such an action must therefore be brought in the name of the union
itself.
The proper plaintiff in an action of a wrong alleged to be done to a company or association of persons is
prima facie the company or association itself. The action therefore cannot be maintained by a single
member, and must be struck out.
As stated by Russell LJ, in Cotter v National Union of Seamen ([1929] All ER Rep 342, [1929] 2 Ch 58,
98 LJ Ch 323, 141 LT 178, 45 TLR 352, 73 Sol Jo 206, 43 Digest 103, 1087):
The rule in Foss v Harbottle ((1843), 2 Hare, 461, 67 ER 189, 9 Digest (Repl) 662, 4382) really
works by means of something in the nature of a dilemma. The only possible plaintiff to stop an intra
vires act is the corporation itself. If an individual is in a position to be able to use the name of the
corporation then the majority are in agreement with him. If he is not in a position to use that name,
then the majority are in disagreement with him, and he is not entitled to bring an action in his own
name.
On this point the submission of counsel for the defendants therefore succeeds.
The application was therefore granted and in the result it was ordered that the writ of summons filed on
26 November 1958, be struck out and that service of the writ of summons on Wendell Eyre Bobb as General
Secretary of the defendant union be struck out, and it was further ordered that the action stand dismissed
with costs of the application and action to the applicant (plaintiff) be taxed, certified fit for counsel.
Writ struck out. Service of writ set aside

240

(1959) 1 WIR 241

BG Lithographic Company Limited v Inland Revenue Commissioners

SUPREME COURT OF BRITISH GUIANA
LUCKHOO J
3 JANUARY, 14 MAY 1959

Income Tax Deduction in ascertaining chargeable income Amount paid as compensation for loss of
office Income Tax Ordinance, Cap 299 [BG], s 12 (1), s 14 (b).
In order to get rid of its managing director whom the company considered inefficient, and to avoid a lawsuit
for wrongful dismissal, which might have involved publicity detrimental to its business interests, a
lithographic company paid the managing director the sum of $28,800 as compensation for loss of office.
Held: the money was a disbursement or expense wholly and exclusively laid out or expended for the
purpose of acquiring the income of the company within the meaning of s 14 (b) of the Income Tax
Ordinance, Cap 299 [BG], and was an outgoing or expense wholly and exclusively incurred during the year
immediately preceding the year of assessment by the company in the production of the income... within
the meaning of s 12 (1) of that Ordinance.
Appeal allowed.
Cases referred to
British Transport Commission v Gourley [1955] 3 All ER 796, [1956] AC 185, 220 LT 354, 100 Sol Jo 12, HL,
3rd Digest Supp
Ward & Co, Ltd v Taxes Comr [1923] AC 145, 28 Digest 42 o
Inland Revenue Comrs v Dowdall, OMahoney & Co, Ltd [1952] 1 All ER 531, [1952] AC 401, [1952] 1 TLR
560, 96 Sol Jo 148, 33 Tax Cas 259, 273, HL, 3rd Digest Supp
Montreal Coke & Manufacturing Co v Minister of National Revenue, Montreal Light, Heat & Power
Consolidated v Minister of National Revenue [1944] 1 All ER 743, [1944] AC 126, 113 LJPC 33, 60 TLR
384, 88 Sol Jo 246
Henry v Foster (A), Henry v Foster (J), Hunter v Dewhurst (1932), 16 Tax Cas 605, sub nom Dewhurst v
Hunter, 146 LT 510, HL, Digest Supp
Mitchell v Noble (BW), Ltd [1927] 1 KB 719, 96 LJKB 484, 137 LT 33, 43 TLR 245, 71 Sol Jo 175, sub nom
Noble (BW), Ltd v Mitchell, Mitchell v Noble (BW), Ltd, 11 Tax Cas 372, CA, Digest Supp
Strong & Co, Ltd v Woodifield [1906] AC 448, 75 LJKB 864, 95 LT 241, 22 TLR 754, 50 Sol Jo 666, 5 Tax
Cas 215, HL, 28 Digest 57, 290
Morgan v Tate & Lyle, Ltd [1954] 2 All ER 413, [1955] AC 21, 98 Sol Jo 422, 35 Tax Cas 367, HL, 3rd Digest
Supp
Imperial Oil, Ltd v Minister of National Revenue [1948] 1 DLR 305, [1947] Ex CR 527, C Tax C 353, 2nd
Digest Supp
Bond v Minister of National Revenue [1946] Ex CR 577, 2nd Digest Supp
Hudsons Bay Co v Minister of National Revenue [1948] 1 DLR 145, [1947] Ex CR 130, C Tax C 86, 6 Fox
49, 2nd Digest Supp
Todd v Commissioners of Taxation [1913] NSW Court of Review Decisions 6
Herald & Weekly Times, Ltd v Federal Commissioner of Taxation (1932), 48 CLR 113
Income Tax Case No 8 (1923), 1 SA Tax Cases 57

241
Lockie Bros v Commissioner for Inland Revenue [1922] TPD 42
Port Elizabeth Electric Tramway Co, Ltd v Inland Revenue Comrs (1935), 8 SA Tax Cases 13
British Insulated & Helsby Cables v Atherton [1926] AC 205, 95 LJKB 336, 134 LT 289, 42 TLR 187, HL, affg
sc sub nom Atherton v British Insulated & Helsby Cables, Ltd, [1925] 1 KB 421, CA, 28 Digest 52, 264
Ushers Wiltshire Brewery, Ltd v Bruce [1915] AC 433, 84 LJKB 417, 112 LT 651, 31 TLR 104, 6 Tax Cas
399, HL, revsg, [1914] 2 KB 891, CA, 28 Digest 56, 287
Smith v Incorporated Council of Law Reporting for England & Wales [1914] 3 KB 674, 83 LJKB 1721, 111 LT
848, 30 TLR 588, 6 Tax Cas 477, 28 Digest 52, 262
W Nevill & Co, Ltd v Federal Comr of Taxation (1937), 56 CLR 290
Addie & Sons Collieries, Ltd v Inland Revenue Comrs [1924] SC 231
Tata Hydro-Electric Agencies, Ltd (Bombay) v Income Tax Comr. Bombay Presidency & Aden, [1937] 2 All
ER 291, [1937] AC 685, 106 LJPC 102, 157 LT 505, 53 TLR 555, 81 Sol Jo 375, PC, Digest Supp

Gresham Life Assurance Society v Styles [1892] AC 309, 62 LJQB 41, 67 LT 479, 56 JP 709, 41 WR 270, 8
TLR 618, 3 Tax Cas 185, HL, 28 Digest 59, 302
Comyn v A-G [1950] IR 142
W Rought, Ltd v West Suffolk CC [1955] 2 All ER 337, revsd sub nom West Suffolk CC v W Rought, Ltd
[1956] 3 All ER 216, [1957] AC 403, 120 JP 522, 100 Sol Jo 619, 54 LGR 473, HL, 3rd Digest Supp
Appeal
Appeal by the appellant company from a decision of the Commissioners of Inland Revenue rejecting the
taxpayers objection to an additional assessment.
The appellant company, the taxpayer, objected in writing to the Commissioners of Inland Revenue
against the disallowance of the sum of $28,800 as being money wholly and exclusively incurred in the
production of the companys income. That sum had been paid by the company to its managing director as
compensation for loss of office. The company considered that the payment of that sum should be made in
order to get rid of the managing director, whom it considered inefficient, and to avoid a lawsuit which might
have involved publicity detrimental to its business interests. The Commissioners who heard the companys
objection decided that under the terms of his employment the managing director was not entitled to
compensation for loss of office and that the sum of $28,800 was in excess of the amount which could
reasonably be held to be payable to him in lieu of notice or even as damages for wrongful dismissal, and
that accordingly that sum was not money wholly and exclusively incurred in the production of the companys
income. Alternatively only such portion of the sum of $28,800 as could reasonably be held to have been
paid in lieu of notice or as damages for wrongful dismissal subject to the principle laid down in British
Transport Commission v Gourley ([1955] 3 All ER 796, [1956] AC 185, 220 LT 354, 100 Sol Jo 12, HL, 3rd
Digest Supp) should be allowed the company as being wholly and exclusively incurred in the production of
the income.
J H S Elliott (instructed by Cameron and Shepherd) for the appellant
G M Farnum Solicitor-General (instructed by Crown Solicitor) for the respondents
Cur adv vult
LUCKHOO J. The appellant, B G Lithographic Company, Limited, is a company incorporated in this Colony
under the Companies Ordinance, Cap 328 [BG], and was in the year ended 31 December 1954, carrying on
the business of printers in this Colony.

242
On 20 June 1955, the appellant submitted an Income Tax Return for the year of assessment 1955,
showing a loss of $40,136.33 in respect of the year preceding the year of assessment 1955, that is to say, in
the year ended 31 December 1954.
The General Profit and Loss Account for the year ended 31 December 1954, submitted by the appellant
to the Commissioners of Income Tax showed a net loss of $179,933.63 for that year after provision had
been made for amortisation of Goodwill and of Plant and Machinery in the sums of $48,200 and $141,440.11
respectively.
The Trading and Profit and Loss Accounts for the year ended 31 December 1954, submitted with the
Income Tax Return, included a debit charge of $28,800 described therein as Compensation to Managing
Director paid to one Leon Schuler who, until 1 June 1954, was the managing director of the appellant. That
sum was paid to Schuler by the appellant under an agreement entered into by the appellant with him on 20
May 1954.
On the same day Schuler tendered his resignation as managing director of the appellant company and
his resignation was accepted on 27 May 1954, by the board of directors as from 1 June 1954, and it was
agreed by the board that Schuler be paid salary at his then rate of salary up to 31 December 1954.
As is stated at paragraph 5 of the Statement of Material Facts filed by the Commissioners, under the
terms of the aforesaid agreement, Schuler was inter alia:
(a) to be paid $28,800 for loss of office as managing director;
(b) to be paid remuneration at the rate of $3,600 per annum from 1 January 1955, as director,
consultant and advisor and for any services rendered to the appellant;
(c) to receive a pension of $4,800 per annum for life as from 1 January 1955.
The Commissioners in their computation of the appellants loss for the year of assessment 1955, disallowed
the sum of $28,800 debited in the appellants accounts for the year ended 31 December 1954, as not being
money wholly and exclusively incurred in the production of the appellants income for that year, and

therefore not a deduction which could be allowed under s 12 (1) of the Income Tax Ordinance, Cap 299
[BG], in ascertaining the chargeable income of the appellant.
The appellant objected in writing to the Commissioners against the disallowance of that sum in the year
of assessment 1955. On 7 September 1957, the Commissioners decided that under the terms of his
employment Schuler was not entitled to any compensation upon loss of office; that having regard to the
amount of salary paid him between 1 July and 31 December 1954, the sum of $28,800 was in excess of the
amount which could reasonably be held to be payable to him in lieu of notice or even as damages for
wrongful dismissal, and that accordingly it was not wholly and exclusively incurred in the production of the
appellants income.
The Commissioners, however, decided that in the circumstances such portion of the sum of $28,800 as
could reasonably be held to have been paid in lieu of notice or as damages for wrongful dismissal subject to
the principle laid down in British Transport Commission v Gourley ([1955] 3 All ER 796, [1956] AC 185, 220
LT 354, 100 Sol Jo 12, HL, 3rd Digest Supp), should be allowed the appellant as being wholly and
exclusively incurred in the production of the income, and ordered that the computation of the loss be
amended accordingly.
On 8 August 1958, the Commissioners made an additional assessment No 269 D/56 (a) to give effect to
the disallowance made. Certain documentary evidence was exhibited to the Commissioners and forms part
of the record of appeal. The evidence discloses that prior to 1942, Booker Bros, McConnell & Co Ltd, a
company incorporated in the United Kingdom, was carrying on lithographic business in this Colony with
Schuler as manager. On 30 September 1942, the appellant company was incorporated in this Colony in
order to take

243
over the said lithographic business with Schuler as manager. On 22 December 1942, the appellant
company entered into an agreement in writing with Schuler and others by which Schuler was appointed
managing director of the company.
Clause 8 of that agreement reads:
The manager shall hold the office of Managing Director, or Manager of the Company, at such
remuneration as the Directors may from time to time fix; Provided Always that such employment shall
be in every respect subject to the provisions of Clause 72 of Table A and Articles 31, 34 and 36 and/or
to determination forthwith if he shall for any reason be unable to perform his duties as Manager
efficiently or shall become in any way unfit to act as Manager or shall not comply with any of the
provisions herein contained relating to his employment, And That if such employment be determined
under the provisions of Clause 72 or Articles 34 or 36 the Firstnamed Vendors undertake to purchase
all shares held by the manager at their fair value as defined in Article 15 if the Manager within one
calendar month after such determination requests them so to do.
Clause 72 of Table A and Articles 31, 34 and 36 are set out hereunder:
Table AClause 72:
The Directors may from time to time appoint one or more of their body to the office of managing
director or manager for such term, and at such remuneration (whether by way of salary, or
commission, or participation in profits, or partly in one way and partly in another) as they think fit, and a
director so appointed shall not, while holding that office, be subject to retirement by rotation, or be
taken into account in determining the rotation of retirement of directors, but his appointment shall be
subject to determination ipso facto if he ceases from any cause to be a director, or if the company in
general meeting resolves that his tenure of the office of managing director or manager be determined.

Articles 31, 34 and 36:

31. The office of any director (including the first directors and any nominated director) shall be
vacated, if the director
(a) ceases to be a director by virtue of section 71 of the Companies (Consolidation) Ordinance; or
(b) becomes insolvent; or
(c) is found lunatic or become of unsound mind; or
(d) by notice in writing resigns his office; or
(e) is removed from office or his appointment or nomination is revoked.
34 The Company may by resolution remove any director from office.

36 Booker Brothers McConnell & Company Limited or the holders for the time being of at least fiftyone per cent of the issued shares, may at any time, and from time to time, as and when they think fit
do all or any of the following things, that is to say:
(i) They may by notice in writing to the Company appoint any persons to be directors, remove any
director from office and fix the remuneration of the directors or any particular director or directors.
(ii) They may at any time convene a general meeting of the Company.
(iii) They may, by notice in writing to the Company make any regulations in regard to the conduct of
the business of the Company or directors thereof and to the signing of documents and may in like
manner annul and vary such regulations.
(iv) Any notice under paragraph (iii) of this Clause shall not have full effect until it or a copy thereof
is filed with the Registrar of Companies.
(v) A notice in writing under this Clause may be signed by the person 244 giving the same or any
attorney or other agent of such person authorised in writing to give the same or generally or specially.
By the year 1953, Schulers eyesight was failing and he appeared unable to adapt himself to the
conditions and became increasingly difficult to work with. He resisted the introduction of a new costing
system. The Commissioners found that the documentary evidence before them disclosed:
(a) that considerable friction in management had developed between W L Lewis, Managing
Director of Industrial Holdings (BG) Ltd, the majority shareholder of the appellant Company, and Leon
Schuler, the Managing Director and minority shareholder of the same;
(b) that Mr Lewis did not consider Mr Schuler to be physically fit enough to carry on the
management of the business;
(c) that Mr Schuler did not consider he had mismanaged the business in any way;
(d) that the possibility of Mr Schulers retirement in terms of Clause 8 of the Agreement dated 22
December 1942 (Exhibit D (1)), was considered by the other interested parties but was rejected on the
advice of the appellants lawyers;
(e) that it was considered essential that either the majority shareholder should sell to Mr Schuler or
that Mr Schulers equity shareholdings be acquired to avoid disaster;
(f) that a reasonable value of Mr Schulers shareholdings would possibly be considered by the
other interested parties as the proportion of the book value of the Net Assets appropriate to his share,
ie 25,455 as at 31 December 1953, with a possible addition of 5,000 for Goodwill;
(g) that it was considered as highly desirable that an amicable settlement should be reached if at all
possible;
(h) that any amicable settlement would have to have regard to his present salary of 3,000 of which
1,000 was payment in lieu of dividend.
Mr J Edward deFreitas, solicitor, also submitted a statement, Exhibit I, relative to a meeting he had
with Schuler on the question of his resigning his office as managing director. The truth of the contents of
that statement has not been impugned by the respondent at the hearing of this appeal. The statement is as
follows:
In May 1954, I was asked by Mr Lewis to interview Mr Schuler and see whether I could not get him
to agree terms on which he would give up his office as managing director. I saw Mr Schuler several
times and at first he was absolutely adamant in his refusal to resign. He said that Bookers were
overlooking the fact that he had started the business, that he had built it up, that he had a one-third
interest in it, and that he regarded it as his child. He knew, he said, that Lewis wanted to get rid of him,
but the only way they could do so would be by dismissing him, and if they did that, Bookers would be
involved in the biggest lawsuit they had ever been involved in. He would sue them for hundreds of
thousands of dollars for wrongful dismissal and conspiracy. He would show them up publicly. They
were saying that the local man would be given every opportunity of getting to the top but he would
show that once the local man got there, their aim was to get rid of him and prevent him earning too
much. I told him he couldnt possibly succeed in any such lawsuit but his reply was that I didnt know
all that he knew and that before the action was finished they would be begging him to settle. He also
hinted that as he was such a large minority holder, he could petition to wind up the company, and my
recollection is that he referred to a Barbados case which had gone to the Privy Council. At any rate my
impression was that he had been speaking to some lawyer on the subject.

245
I had the greatest difficulty in calming him down and in getting him to see reason. I told him that a
lawsuit would do him no good, would be expensive and might ruin him. It was clear to me that his
pride was severely hurt and that he was not prepared to give up his position unless there was some
way of his saving face. I pointed out that everyone knew his eyesight was bad and I suggested his

retention on the board as a consultant. I went through with him the terms that had been offered him. I
said that they seemed to me to be generous and that I was sure his health would improve if he had no
further business worries. He was satisfied with the proposed pension etc, but he wanted a much
higher sum for giving up his office and his shares. Eventually, he agreed to accept 6,000 for loss of
office and the other terms were agreed as set out in a memorandum which I prepared.
(sgd) J Edward deFreitas.
6th May 1957.
The directors of the company were of the opinion that difficult questions of law arose in respect of the
provisions for the termination of Schulers employment as managing director in the agreement of 22
December 1942, and that in the business interests of the company a lawsuit should be avoided and a
settlement with Schuler arrived at, particularly in view of the political events of 1953. The British Guiana
Constitution introduced earlier that year was suspended in October 1953. After negotiations between the
board of directors of the company, their legal advisers and Schuler, an agreement was entered into on 20
May 1954, between the company and Schuler whereby Schuler was inter alia to be paid $28,800 by the
company for loss of office as managing director.
The following reasons were given by the Commissioners for their decision:
1. The Commissioners say the $28,800 was not paid under any scheme for employees of the
appellant generally.
2. The Commissioners say that the $28,800 was not paid by the appellant to get rid of an onerous
contract.
3. The Commissioners say the $28,800 was not paid by the appellant under any agreement
between the appellant and Mr Schuler, the managing director, for the payment to him of a salary for so
many years, to last for a definite time, but with power to the appellant to terminate the service by
making the payment at once of a capital sum.
4. The Commissioners say that Mr Schuler, the managing director, was not employed by the
appellant for any fixed term and accordingly, he possessed no right of office which was terminated
before its time; that there was no abrogation of his rights, and that the appellant was under no
obligation to compensate him for loss of office.
5. The Commissioners say that the alleged compensation for loss of office was not and could not
have been determined on the normal measure of such damages, that is to say, the loss of his salary,
subject to a discount on the ordinary principle, in consideration of the fact that he might be out of
employment.
6. The Commissioners say that the appellant may probably, in the absence of notice to terminate
Mr Schulers employment, have been liable in damages, but that the $28,800 was far in excess of what
could reasonably be considered as damages on this account.
7. The Commissioners say that while the appellant, to avoid legal action which the appellant
considered might have had a damaging effect on the appellants business, might have agreed to pay
an amount in excess of what could be considered as reasonable damages for termination of Mr
Schulers employment without notice, such excess would have been expended with a view to the
preservation of the appellants business and accordingly would not

246
be wholly and exclusively incurred in the production of the appellants income. In support of this
opinion, the Commissioners cite Ward & Co, Ltd v Taxes Comr ([1923] AC 145, 28 Digest 42 o.)
8. The Commissioners say the words in the production of the income in s 12 of the Income Tax
Ordinance [BG] do not cover the same expenditure as the words for the purposes of the trade in the
Income Tax Act, 1952 [UK]. The Commissioners cite in this respect Inland Revenue Comrs v Dowdall,
OMahoney & Co, Ltd ([1952] 1 All ER 531, [1952] AC 401, [1952] 1 TLR 560, 96 Sol Jo 148, 33 Tax
Cas 259, 273, HL, 3rd Digest Supp) and Ward & Co, Ltd v Taxes Comr ([1923] AC 145, 28 Digest 42
o.)
9. The Commissioners say that an expenditure incurred wholly and exclusively for the purpose of
the trade may yet not be incurred wholly and exclusively in the production of the income (Ward & Co,
Ltd v Taxes Comr ([1923] AC 145, 28 Digest 42 o) and Montreal Coke & Manufacturing Co v Minister
of National Revenue, Montreal Light, Heat & Power Consolidated v Minister of National Revenue
([1944] 1 All ER 743, [1944] AC 126, 113 LJPC 33, 60 TLR 384, 88 Sol Jo 246)).
10. The Commissioners say that damages or compensation for loss of office are not exigible to
income tax in the hands of the recipient (Hunter v Dewhurst ((1932), 16 Tax Cas 605, sub nom
Dewhurst v Hunter, 146 LT 510, HL, Digest Supp)), and that accordingly, the principle laid down in
British Transport Commission v Gourley ([1955] 3 All ER 796, [1956] AC 185, 220 LT 354, 100 Sol Jo
12, HL, 3rd Digest Supp) applies.

11. The Commissioners say that on the basis of the accounts submitted to them the appellant did
not suffer considerable losses by the year 1953.
12. The Commissioners say that while the accounts for the year ended 31 December 1954, show a
loss of $179,933:
(a) no evidence was submitted to the Commissioners to show that the appellant did as a fact incur
considerable losses for the period 1 January to 31 May 1954, that is, to the date of resignation of Mr
Schuler.
(b) The loss of $179,933 could not, in the absence of abundant proof, be reasonably attributed to
the failing health of Mr Schuler, as such loss is to a large extent occasioned by the amortisation of
Goodwill and of plant and machinery purchased from F A Persick Ltd.
13. The Commissioners say that no evidence was adduced to the Commissioners as to the difficult
questions of law and of fact which termination of the managers employment would have occasioned.
14. The Commissioners say that while reference was made to the Managers threat to smear the
name of a company associated with the appellant, no evidence was adduced to the Commissioners as
to any threat to smear the name of the appellant, or as to how such a threat could or would have
affected or jeopardised in any way the business of the appellant.
15. The Commissioners say the Commissioners had evidence before them on which they could, in
all the circumstances of the case, reasonably conclude that in the settlement with Mr Schuler the
appellant was not dealing with him strictly as managing director per se.
16. The Commissioners say it is the duty of the Commissioners to determine for income tax
purposes what is and what is not wholly and exclusively incurred in the production of the income.
17. The Commissioners say that the case of Noble (B W), Ltd v Mitchell ([1927] 1 KB 719, 96 LJKB
484, 137 LT 33, 43 TLR 245, 71 Sol Jo 175, sub nom Noble (BW), Ltd v Mitchell, Mitchell v Noble
(BW), Ltd, 11 Tax Cas 372, CA, Digest Supp) is distinguishable from the present case.
At the hearing of this appeal counsel for the appellant and the Solicitor-General both adopted the
arguments they had advanced at the hearing of the abortive proceedings No 1413/1957 Demerara, on 21
July 1958, where an appeal had been lodged by the appellant in the mistaken belief that an additional
assessment had been made following upon the Commissioners letter to the appellant stating their intention
to disallow the deduction of the sum of $28,800 abovementioned in ascertaining the chargeable income of
the appellant in the year of assessment 1955.

247
Counsel for the appellant submitted that on the facts the present case is indistinguishable from the case
of Mitchell v Noble (B W), Ltd ([1927] 1 KB 719, 96 LJKB 484, 137 LT 33, 43 TLR 245, 71 Sol Jo 175, sub
nom Noble (BW), Ltd v Mitchell, Mitchell v Noble (BW), Ltd, 11 Tax Cas 372, CA, Digest Supp) (where a
deduction was allowed) and that the law as to the deductibility of the expenditure sought to be made in the
present case is the same as that under the corresponding English provision, r 3 of the Rules applicable to
Cases I and II of Schedule D to the Income Tax Act, 1918 [UK].
It may, perhaps, be more convenient to deal first with counsels submission on the law applicable to the
question of the deductibility of the expenditure sought to be deducted by the appellantss 12 (1) and 14 (b)
of the Income Tax Ordinance, Cap 299 [BG].
The relevant English provision applied in Mitchell v Noble (BW), Ltd ([1927] 1 KB 719, 96 LJKB 484,
137 LT 33, 43 TLR 245, 71 Sol Jo 175, sub nom Noble (BW), Ltd v Mitchell, Mitchell v Noble (BW), Ltd, 11
Tax Cas 372, CA, Digest Supp), r 3 of the Rules applicable to Cases I and II of Schedule D of the Income
Tax Act, 1918 [UK], is as follows:
3. In computing the amount of the profits or gains to be charged, no sum shall be deducted in
respect of
(a) any disbursements or expenses, not being money wholly and exclusively laid out or expended
for the purposes of the trade, profession, employment or vocation ...
(b) any capital withdrawn from, or any sum employed or intended to be employed as capital in such
trade, profession, employment or vocation...
The words for the purposes of the trade in the corresponding provision of the Income Tax Act, 1842
[UK], were considered in Strong & Co, Ltd v Woodifield ([1906] AC 448, 75 LJKB 864, 95 LT 241, 22 TLR
754, 50 Sol Jo 666, 5 Tax Cas 215, HL, 28 Digest 57, 290) and Lord Daveys observation on the
meaning of those words has often since been quoted with approval. Lord Davey said ([1906] AC at p
453):
These words are used in other rules, and appear to me to mean for the purpose of enabling a
person to carry on and earn profits in the trade, etc. I think that the disbursements permitted are such
as are made for that purpose. It is not enough that the disbursement is made in the course of, or

arises out of, or is connected with, the trade, or is made out of the profits of the trade. It must be made
for the purpose of earning the profits.
In Morgan v Tate & Lyle, Ltd ([1954] 2 All ER 413, [1955] AC 21, 98 Sol Jo 422, 35 Tax Cas 367, HL, 3rd
Digest Supp), Lord Morton Of Henryton in applying Lord Daveys observation said:
The last sentence of this observation has sometimes been quoted in isolation, but it cannot be
supposed that, in this one short passage, Lord Davey intended to ascribe two different meanings to the
words in question, and, if his observation is read as a whole, I think it is clear that the last sentence in
no way qualifies or alters the statement as to the meaning of the words in question which is contained
in the first sentence.
The English provision was considered along with the corresponding Canadian, Australian and South African
provisions by Thorsen P, in Imperial Oil, Ltd v Minister of National Revenue ([1948] 1 DLR 305, [1947] Ex
CR 527, C Tax C 353, 2nd Digest Supp), cited by counsel for the appellant. Earlier Thorsen P, had in Bond
v Minister of National Revenue ([1946] Ex CR 577, 2nd Digest Supp) expressed the view that the words for
the purpose of earning the income in s 6 (a) of the Income War Tax Act, 1927 [Canada], bore the same
meaning as the words for the purposes of the trade in the corresponding English provision, and Angers J,
in expressing a like view in Hudsons Bay Co v Minister of National Revenue ([1948] 1 DLR 145, [1947] Ex
CR 130, C Tax C 86, 6 Fox 49, 2nd Digest Supp) said that the question has to be considered from a broad
view of commercial accountancy as to what are proper charges against revenue and what are proper
charges against capital. In Imperial Oil, Ltd v Minister of National Revenue ([1948] 1 DLR 305, [1947] Ex
CR 527, C Tax C 353, 2nd Digest Supp) the question was whether a sum paid as damages on account of
the negligence of the taxpayers vessel in sinking another was an expense wholly, exclusively and
necessarily laid out for the purpose of earning the income.

248
The relevant provision, s 6 of the Income War Tax Act, 1927 [C], appears under Part II of the Act under
the heading Exemptions and Deductions and sub-heading Deductions from income not allowed:
(1) In computing the amount of the profits or gains to be assessed a deduction shall not be allowed
in respect of
(a) disbursements or expenses not wholly, exclusively and necessarily laid out or expended for the
purpose of earning the income.
Thorsen P, held (as is stated in the head-note to the report):
(i) that the deductibility of disbursements or expenses under the Act is to be determined according
to the ordinary principles of commercial trading or well-accepted principles of business and accounting
practice unless their deduction is prohibited by reason of their coming within the express terms of the
excluding provisions of the Act and that if the expense is not within the express terms of the exclusion,
its deduction should be allowed if it is in accord with the ordinary principles of commercial trading or
well-accepted principles of business and accounting practice;
(ii) that the payment made as damages was in respect of a liability for a happening that was
incidental to the business of the appellant and that negligence on the part of the appellants servants in
the operation of its vessel, with a consequential liability to pay damages for a collision resulting
therefrom, was a normal and ordinary risk of the marine operations of the appellants business;
(iii) that while s 6 (1) (a) of the Act, by implication, prescribes that the expenditure should be made
for the purpose of earning the income it is not a condition of its deductibility that it should actually earn
any income and the view that an expenditure may not be deducted unless it earns some income is
quite erroneous;
(iv) that the law as to the deductibility of an expenditure such as that sought to be deducted by the
appellant in this case is the same under s 6 (1) (a) of the Act as under the corresponding sections of
the English, Australian and South African Acts.
The first of the two Australian cases considered by Thorsen P, was Todd v Commissioners of Taxation
([1913] NSW Court of Review Decisions 6), decided under s 16 (1) (e) of the Income Tax (Management) Act,
1912 [NSW], which required the Commissioners to deduct from the income of the taxpayer the following
moneys and expenses:
(a) losses, outgoings, including commission, discount, travelling expenses, and expenses actually
incurred in New South Wales by the taxpayer in the production of his income.

In that case a ferry company paid damages to passengers in respect of injuries received, and claimed it
as a loss incurred in the production of the companys income. The Commissioners disallowed the
deduction, and on appeal, Murray DCJ, allowed it and in the course of his judgment said:
The question is whether this is a loss incurred by the taxpayer in the production of his income.
These words mean as I suggested just now what is more fully expressed by the words loss incurred
by the taxpayer in the course of the production of his income... The course of the production in this
case is partly disembarking and embarking passengers. This was a loss which happened quite
accidentally. There was misconduct on the part of some employee; but so far as the company is
concerned it was purely accidental; and it did occur as a loss which might reasonably be contemplated
to happen some time or other in the course of events which were a necessary incident to the
production of the income; because part of the carrying of passengers, 249for which they pay, is their
embarkation and disembarkation...
Therefore I think this is a loss which does come within the
section.
The second Australian case considered was Herald & Weekly Times Ltd v Federal Commissioner of
Taxation ((1932), 48 CLR 113), decided under ss 23 (1) (a) and 25 (e) of the Income Tax Assessment Act,
1922-1929 [Australia]. Section 23 (1) (a) is as follows:
In calculating the taxable income of a taxpayer the total assessable income derived by the
taxpayer from all sources in Australia shall be taken as a basis, and from it there shall be deducted
(a) all losses and outgoings (including commission, discount, travelling expenses, interest and
expenses, and not being in the nature of losses and outgoings of capital) actually incurred in gaining or
producing the assessable income.
Section 25 (e) is as follows:
A deduction shall not, in any case, be made in respect of any of the following matters:
****
(e) money not wholly and exclusively laid out or expended for the production of the assessable
income.
In that case the appellant, the proprietor and publisher of an evening newspaper, claimed as a
deduction from its assessable income moneys paid by way of compensation, either before or after judgment,
to persons claiming damages in respect of libels published in that paper and amounts representing the costs
of contesting the claims or of obtaining advice in regard thereto. The Commissioner disallowed the
deduction and the Supreme Court of Victoria dismissed an appeal from his ruling, Mann J, being of the
opinion that although the expenditure was an unavoidable consequence of the business of publishing the
newspaper it was not in any sense a productive expenditure directly or indirectly, and that the sums paid
were not wholly and exclusively laid out or expended for the production of assessable income. The High
Court of Australia reversed this judgment and allowed the deduction Duffy CJ, and Dixon J, said ((1932), 48
CLR at p 118):
None of the libels or supposed libels was published with any other view than the sale of the
newspaper. The liability to damages was incurred, or the claim was encountered, because of the very
act of publishing the newspaper. The thing which produced the assessable income was the thing
which exposed the taxpayer to the liability or claim discharged by the expenditure. It is true that when
the sums were paid the taxpayer was actuated in paying them, not by any desire to produce income,
but, in the case of damages or compensation, by the necessity of satisfying a claim or liability to which
it had become subject, and, in the case of law costs by the desirability, or urgency of defeating or
diminishing such a claim. But this expenditure flows as necessary or a natural consequence from the
inclusion of the alleged defamatory matter in the newspaper and its publication.
The corresponding South African provisions referred to were ss 11 (2) and 13 of the Income Tax Act,
1925 [SA]. The former section provides that certain deductions from income for the purpose of determining
taxable income should be made as follows:
11. (2) The deductions allowed shall be
(a) expenditures and losses actually incurred in the Union in the production of the income, provided
such expenditures or losses are not of a capital nature.

250
Section 13 (b) provides as follows:
13. No deduction shall, as regards income derived from any trade, be made in respect of any of
the following matters:
********
(b) any moneys not wholly or exclusively laid out or expended for the purposes of trade.
Thorsen P (in Imperial Oil, Ltd v Minister of National Revenue ([1948] 1 DLR 305, [1947] Ex CR 527, C
Tax C 353, 2nd Digest Supp)) reviewed a number of the decisions by South African Courts under the above
mentioned provisions. He refers (C Tax C at p 364) to Income Tax Case No 8(( 1923), 1 SA Tax Cases 57)
in which Ingram P, said (1923) 1 SA Tax Cases at page 58):
In the case of Lockie Bros v Commissioner for Inland Revenue ([1922] TPD 42.), Manson J,
interpreted the words losses and outgoings actually incurred in the production of the income as
meaning expenditures incurred in the course of and by reason of the ordinary operations undertaken
for the purpose of conducting the business. When applying the construction each case must, of
course, depend on its own merits, and in certain cases the dividing line might not be easy to
demarcate.
Thorsen P, also referred to port Elizabeth Electric Tramway Co, Ltd v Inland Revenue Comrs (1935), 8
SA Tax Case at p 17), where Watermeyer AJP, is reported as stating
All expenses attached to the performance of a business operation bona fide performed for the
purpose of earning income are deductible whether such expenses are necessary for its performance
or attached to it by chance or are bona fide incurred for the more efficient performance of such
operation provided they are so closely connected with it that they may be regarded as part of the cost
of performing it.
After referring to judgment of the Privy Council in Montreal Coke & Manufacturing Co v Minister of
National Revenue (Montreal Light, Heat & Power Consolidated v Minister of National Revenue [1944] 1 All
ER 743, [1944] AC 126, 113 LJPC 33, 60 TLR 384, 88 Sol Jo 246), a case decided under the Canadian
provision, Thorsen P, said (C Tax C at p 372)
The result is that the law as to the deductibility of an expenditure such as that sought to be
deducted by the appellant is same under s 6 (a) as under the corresponding sections of the English,
Australian and South African Acts.
He went on to say (ibid, at pp 372, 373)
Even apart from the decisions it is a reasonable interpretation of s 6 (a) that it should be so, even
although there are some differences in language. It is obvious that the words for the purpose of
earning the income in s 6 (a) as applied to disbursements or expenses, cannot be construed literally,
for the laying out or expending of disbursements or expenses cannot by itself ever accomplish the
purpose of earning the income. As Watermeyer AJP, pointed out in Port Elizabeth Electric Tramway
Co, Ltd v Inland Revenue Comrs ((1935), 8 SA Tax Cases 13), income is earned not by the making of
expenditures but by various operations and transactions in which the taxpayer has been engaged or
the services he has rendered in the course of which expenditures may have been made. These are
the disbursements or expenses referred to in s 6 (a), namely, those that are laid out or expended as
part of the operations, transactions or services by which the taxpayer earned the income. They are
properly, therefore, described as disbursements or expenses laid out or expended as part of the
process of earning the income. This means that the deductibility of a particular item of expenditure is
not to be determined by isolating it. It must be looked at in the light of its connection with the

251
operation, transaction or service in respect of which it was made so that it may be decide whether it
was made not only in the course of earning the income but as part of the process of doing so.
The Canadian provision had earlier, in 1944, been considered by the Privy Council in Montreal Coke &
Manufacturing Co v Minister of National Revenue Montreal Light, Heat & Power Consolidated v Minister of
National Revenue [1944] 1 All R 743, [1944] AC 126, 113 LJPC 33, 60 TLR 384, 88 Sol Jo 246), on appeal
from the Supreme Court of Canada. Reference was made in the course of the argument before the Board

to a number of reported cases on the corresponding English, Dominion and Indian Revenue Statutes, but as
is stated in the judgment of the Board ([1944 1 All ER at p 747), the Board did not consider it necessary to
discuss those authorities. In construing the Canadian Provision Lord Macmillan in delivering the judgment of
the Board said at p 746:
If the statue permitted the deduction of expenditure incurred for the purpose of increasing income
the appellants might well have prevailed. But such a criterion would have opened a very wide door. It
is obvious that their can be appropriate deductions in ascertaining annual net profits or gain. The
statutory criterion is a much narrower one. Expenditure to be deductible must be directly related to the
earning of income.
The last sentence bears a close resemblance to the words used by Viscount Cave LC, in Ward & Co,
Ltd v Taxes Comr ([1923] AC 145, 28 Digest 42 o) in formulating the test to be applied in respect of the
corresponding New Zealand provision where the relevant words were in the production of the assessable
income:
.....it must have been incurred for the direct purpose of producing profits.
In Wards & Co, Ltd v Taxes Comr case ([1923] AC 145, 28 Digest 42 o) a brewery company, carrying
on business in New Zealand, expended money in printing and distributing anti-prohibition literature, a poll of
the voters of New Zealand being about to be taken under statutory authority as to whether or not prohibition
of intoxicating liquor should be introduced. The poll resulted in a small majority against prohibition. The
appellants sought to deduct the expenditure in the assessment of income derived from their business for the
purposes of the Land and Income Tax Act, 1916 [NZ]. The Commissioner of Taxes rejected the deduction as
one which could not be made having regard to s 86 (1) (a) of that Act. The Court of Appeal of New Zealand
affirmed the decision of the Commissioners of Taxes. The provisions of s 86 (1) (a) of the Act are as follows:
In calculating the assessable income derived by any person from any source no deduction shall be
made in respect of any of the following sums or matters:
(a) Expenditure or loss of any kind not exclusively incurred in the production of the assessable
income derived from that source....
The reasoning of the Court of appeal upon the point raised was referred to with approval by viscount
Cave LC, in delivering the opinion of the Board ([1923] AC at p 149):
The conclusion of the Court of Appeal upon this point is contained in the following passage in the
judgment of the court
The question, therefore, is: Was the expenditure under consideration exclusively incurred in the
production of the assessable income, for unless it was so, the Act expressly prohibits its deduction
from such income. This question must, we think, be answered in the negative. We find it quite
impossible to hold that the expenditure was incurred exclusively, or at all, in the production of the
assessable income. It was incurred not for the production of income, but for the purpose of preventing
the extinction of the business from which the income was derived, which is quite a different 252 thing.
It was contended by the company that it was illogical that while legitimate expenses incurred inthe
production of the income are deductible, similar expenses incurred for the much more important
purpose of keeping the profit-making business alive are not deductible, and, further, that it was
inequitable that the Legislature should, on the one hand, force a certain class of traders into a struggle
for their very existence, and, on the other hand, treat the reasonable expenses incurred in connection
with such struggle as part of the profits assessable to income tax. These aspects of the matter are
clearly and forcibly set out inthe contentions of the company as embodied inthe correspondence with
the Commissioner contained inthe case, but they raise questions which can only be dealt with
appropriately by the Legislature. This court, however, cannot be influenced by such considerations,
being concerned only with the interpretation and application of the law as it stands.
Their Lordships agree with this reasoning. The expenditure in question was not necessary for the
production of profit, nor was it in fact incurred for that purpose. It was a voluntary expense incurred
with a view to influencing public opinion against taking a step which would have depreciated and partly
taken, and may properly find a place, either in the balance sheet or in the profit-and-loss account of the
appellants; but this is not enough to take it out of the prohibition in s 86, sub-s 1 (a), of the Act. For
that purpose it must have been incurred for the direct purpose of producing profits. The conclusion
may appear to bear hardly upon the appellants; but, if so, a remedy must be found in an amendment of
the law, the terms of which are reasonably clear.

In concluding the opinion of the Board, Viscount Cave said:

It is only necessary to add that the decisions on the English Income Tax Acts, the language of
which is different from that of the New Zealand Act, have no real bearing upon the question now under
decision.
That case was considered by the House of Lords in Morgan v Tate & Lyle, Ltd ([1954] 2 All ER 413,
[1955] AC 21, 98 Sol Jo 422, 35 Tax Cas 367, HL, 3rd Digest Supp). Lord Morton Of Henryton, In delivering
his judgment (in which Lord Asquith Of Bishopstone concurred), after referring to the reasoning of the New
Zealand Court of Appeal in Wards & Co, Ltd v Taxes Comr case ([1923] AC 145, 28 Digest 42 o), said
([1954] 2 All ER at p 420):
In my view this case is of no assistance to the Crown, having regard to the difference in language
which is pointed out by the Board in the last sentence just quoted. The language of the New Zealand
statute is much narrower than that of r 3 (a), and In think that if the Board had been applying r 3 (a) to
the facts in the New Zealand case its decision might have been to the opposite effect. It is noteworthy
that Viscount Cave LC, in the delivering the judgment of the Board, said that in order to take the
expense in question out of the prohibition in s 86 (1) of the New Zealand Act (ibid, 150),... it must have
been incurred for the direct purpose of producing profits. With this observation should be constrasted
the observation of Viscount Cave LC, only three years later, in regard, in regard to r 3 (a) in British
Insulated & Helsby Cables v Atherton ([1926] AC 205, 95 LJKB 336, 134 LT 289, 42 TLR 187, HL, affg
sc sub nom Atherton v British Insulated & Helsby Cables, Ltd, [1925] 1 KB 421, CA, 28 Digest 52,
264.):
It was made clear in the above cited cases of Ushers Wiltshire Brewery, Ltd v Bruce ([1915] AC
433, 84 LJKB 417, 112 LT 651, 31 TLR 104, 6 Tax Cas 399, HL, revsg, [1914] 2 KB 891, CA, 28 Digest
56, 287) and Smith v Incorporated Council of Law Reporting for England and Wales ([1914] 3 KB 674,
83 LJKB 1721, 111 LT 848, 30 TLR 588, 6 Tax Cas 477, 28 Digest 52, 262) that a sum of money
expended, not of necessity and with a view to a direct and immediate benefit to the trade, but
voluntarily and on the grounds of commercial expendiency, and in order indirectly to facilitate the
carrying on of the business, may yet be expended wholly and exclusively for the purposes of the trade;
and it appears to me that the 253 findings of the Commissioners in the present case bring the
payments in question within that description.
Lord Reid in his judgment ([1954] 2 All ER at p 425) also contrasted what Viscount Cave had said in
Wards & Co, Ltd v Taxes Comr case ([1923] AC 145, 28 Digest 42 o) and in Athertons case ([1926] AC 205,
95 LJKB 336, 134 LT 289, 42 TLR 187, HL, affg sc sub nom Atherton v British Insulated & Helsby Cables,
Ltd, [1925] 1 KB 421, CA, 28 Digest 52, 264) and stated at page 426:
If that is a correct statement of the law in England and In think it is it is not difficult to see why
the Board in Wards & Co, Ltd v Taxes Comr ([1923] AC 145, 28 Digest 42 o) said that the English
decisions had no real bearing on the question in Wards & Co, Ltd v Taxes Comr case ([1923] AC 145,
28 Digest 42 o). And, if that is so, then it appears to me that the converse must be true: Wards & Co,
Ltd v Taxes Comr case ([1923] AC 145, 28 Digest 42 o) has no real bearing on the question now
before your Lordships.
Lord Tucker, in his dissenting judgment, declined to examine the precise difference in the language of
the New Zealand and English provisions, while Lord Keith, in his dissenting judgment ([1954] 2 All ER at p
439), said:
We were referred to an Australian case of W Nevill & Co, Ltd v Federal Comr of Taxation ((1937),
56 CLR 290), in which the High Court of Australia held that a sum paid to a managing director to
secure his resignation was a loss or outgoing incurred in gaining or producing assessable income,
language nearly identical with that in the New Zealand case of Ward & Co, Ltd v Taxes Comr ([1923]
AC 145, 28 Digest 42 o.) In that case (ie Nevill & Co, Ltd v Federal Comr of Taxation (1937), 56 CLR
290) Wards & Co, Ltd v Taxes Comr case ([1923] AC 145, 28 Digest 42 o), British Insulated & Helsby
Cables v Atherton [1926] AC 205, 95 LJKB 336, 134 LT 289, 42 TLR 187, HL, affg sc sub nom
Atherton v British Insulated & Helsby Cables, Ltd, [1925] 1 KB 421, CA, 28 Digest 52, 264 and Mitchell
v Noble (BW), Ltd ([1927] 1 KB 719, 96 LJKB 484, 137 LT 33, 43 TLR 245, 71 Sol Jo 175, sub nom
Noble (BW), Ltd v Mitchell, Mitchell v Noble (BW), Ltd, 11 Tax Cas 372, CA, Digest Supp) were all
before the court and a perusal of the judgment to produce assessable income, the Australian Court
proceeded on the same principles and reached the same result as would have been recognised and
reached by an English Court deciding what was an expense laid out for the purposes of the trade.

The Australian case of W Nevill & Co, Ltd v Federal Comr of Taxation ((1937), 56 CLR 290) had been
referred to by Lord MORTON who expressed the opinion that the wording of the Australian provision was
narrower than that of the corresponding English provision. In the course of his judgment ([1954] 2 All ER at
pp 418, 419) he said:
I can see no distinction in principle between a payment made to preserve the status and dividendearning power of the company and a payment made to prevent seisure of the companys profit-earning
assets. It is interesting to note that in W Nevill & Co, Ltd v Federal Comr of Taxation ((1937), 56 CLR
290) the High Court of Australia arrived at the same conclusion, on similar facts, when construing the
narrower wording of s 25 (e) of the Income Tax Assessment Act, 1922-32 [A] wholly and exclusively
laid out or expended for the production of assessable income.
If regard is had to the tests formulated inthe judgment of the Privy Council in the cases of Montreal
Coke & Manufacturing Co v Minister of National Revenue, Montreal Light, Heat & Power Consolidated v
Minister of National Revenue ([1944] 1 All ER 743, [1944] AC 126, 113 LJPC 33, 60 TLR 384, 88 Sol Jo 246)
and Ward & Co, Ltd v Taxes Comr ([1923] AC 145, 28 Digest 42 o), and by Viscount Cave LC, in British
Insulated & Helsby Cables v Atherton ([1926] AC 205, 95 LJKB 336, 134 LT 289, 42 TLR 187, HL, affg sc
sub nom Atherton v British Insulated & Helsby Cables, Ltd, [1925] 1 KB 421, CA, 28 Digest 52, 264) together
with the opinions of Lord Morton Lord Reid and Lord Asquith in Morgan v Tate & Lyle, Ltd ([1954] 2 All ER
413, [1955] AC 21, 98 Sol Jo 422, 35 Tax Cas 367, HL, 3rd Digest Supp), referred to above, it would appear
that the wording of the Canadian provision is somewhat narrower than that of the corresponding English
provision. However, as early as 1937, the Privy Council had adopted the test formulated by the Lord
President (Lord Clyde) in Addie & Sons Collieries, Ltd v Inland Revenue Comrs ([1924] SC 231), decided
under the English provision, in construing the corresponding India provision in the case of Tata HydroElectric Agencies, Ltd (Bombay) v Income Tax Comr, Bombay Presidency and Aden ([1937] 2 All ER 291,
[1937] AC 685, 106 LJPC 102, 157 LT 505, 53 TLR 555, 81 Sol Jo 375, PC, Digest Supp). The relevant
Indian enactment was the Income Tax Act, 1922 [India], s 10 (2) of which provided that the profits or gains
from any business carried on by the assesses were to be computed after making allowance for

254
(ix) any expenditure (not being in the nature of capital expenditure) incurred solely for the purpose
of earning such profits or gains.
It will be observed that the Canadian provision is in terms very similar to the corresponding Indian
provision.
If I am correct in the conclusions I have drawn from an examination of the decisions referred to above, it
would appear that the opinions of the Privy Council inthe Ward & Co, Ltd v Taxes Comr ([1923] AC 145, 28
Digest 42 o) and Montreal Coke & Manufacturing Co v Minister of National Revenue, Montreal Light, Heat &
Power Consolidated v Minister of National Revenue [1944] 1 All ER 743, [1944] AC 126, 113 LJPC 33, 60
TLR 384, 88 Sol Jo 246) cases as to the construction of the provisions in the New Zealand Act and the
Canadian Act respectively are not easily reconcilable with its opinion as to the construction of the
corresponding provision in the Indian Act.
If it is necessary for me to state my opinion I would prefer the conclusion reached by Lord Morton to the
effect that the New Zealand and Australian provisions are in terms narrower than the corresponding English
provision and I would hold that the Canadian provision is also in terms narrower than the English provision
and is in terms similar to the corresponding Australian, New Zealand and British Guiana provisions.
As to the South African provisions, s 13 (b) (which relates to prohibited deductions) is in terms identical
with the corresponding English provision, while s 11 (2) ( which relates to allowable deductions) is in terms
very similar to the corresponding Australian provision and also to s 12 (1) of the Income Tax Ordinance, Cap
299 [BG] Sections 12 (1) and 14 (b) of the Ordinance closely resemble ss 23 (1) (a) and 25 (e) of the
Income Tax Assessment Act, 1922-1929 [A].
Section 14 (b) of the Income Tax Ordinance, Cap 299 [BG], provides as follows:
For the purpose of ascertaining the chargeable income of any person no deduction shall be
allowed in respect of
(b) any disbursement or expenses not being money wholly and exclusively laid out or expended for
the purpose of acquiring the income.
Section 12 (1) of the Ordinance provides:

For the purpose of ascertaining the chargeable income of any person there shall be deducted all
outgoings and expenses wholly and exclusively incurred during the year immediately preceding the ear
of assessment by that person in the production of the income...
The fact that a disbursement or expense may be allowable under s 12 (1) of the Ordinance does not
necessarily permit it to be deducted for the purpose of ascertaining chargeable income. It mist also not be a
prohibited deduction under s 14. In the English, Canadian and New Zealand Acts there are no provisions as
to deductibility of disbursements ad expenses other than those which refer to prohibited deduction. Under
those Acts, as was held by Thorsen P, in Imperial Oil, Ltd v Minister of National Revenue ([1948] 1 DLR 305,
[1947] Ex CR 527, C Tax C 353, 2nd Digest Supp), the deductibility of disbursements of expenses is to be
determined according to the ordinary principles of commercial trading or well-accepted principles of
business and accountancy practice unless their deduction is prohibited by reason of their coming within the
express provisions of the enactment (See Gresham Life Assurance Society v Styles ([1892] AC 309, 62
LJQB 41, 67 LT 479, 56 JP 709, 41 WR 270, 8 TLR 618, 3 Tax Cas 185, HL, 28 Digest 59, 302) per Lord
Halsbury ([1892] AC at p 316), and Ushers Wiltshire Brewery, Ltd v Bruce ([1915] AC 433, 84 LJKB 417,
112 LT 651, 31 TLR 104, 6 Tax Cas 399, HL, revsg, [1914] 2 KB 891, CA, 28 Digest 56, 287) per the Earl of
Loreburn ([1915] AC at p 444).)
In my view the test to be applied in determining whether a disbursement or expense in an allowable
deduction under the Ordinance is that it must have been incurred for the direct purpose of producing profits.
It must of course be observed, as Lord Keith pointed out in Morgan v Tate & Lyle, Ltd ([1954] 2 All ER 413,
[1955] AC 21, 98 Sol Jo 422, 35 Tax Cas 367, HL, 3rd Digest Supp), that an expenditure may be made for
the direct purpose of producing profit though the means of achieving that purpose are indirect.

255
Having determined the test to be applied, the next step is to apply that test to the facts of the case in
question. The facts of this case show that the payment to Schuler was made bona fide by the appellant for
the purpose of getting rid of a managing director whom the appellant considered inefficient and to avoid a
lawsuit for wrongful dismissal which might involve publicity detrimental to the business interests of the
appellant.
It is clear that the appellant could not induce Schuler to go for any lesser sum despite efforts to do so.
Had the appellant refused to pay him that entire sum there was the real risk of being involved in a lawsuit
which it was inthe companys business interests to avoid. The expenditure was made for the purpose of
increasing the efficiency of the company (not, as suggested by the respondents, with a view to the
preservation of the appellants business) and therefore increasing its income-producing capacity. It is
unnecessary that the chargeable income for the production of which the expenditure was made should be
that of the year of assessment.
In my opinion payments of this kind are expenses wholly and exclusively laid out for the purpose of
acquiring the income and are wholly and exclusively made in the production of the income. It was
contended on behalf of the respondents that Schuler could have been dismissed at any time on the ground
of inefficiency, that at most he could recover an amount in lieu of notice or damages for wrongful dismissal,
and that the allowable deduction in respect of any compensation awarded him should be limited to such an
amount. This contention is in my view wholly erroneous. It ignores the realities of the situation. Further,
there is no suggestion that the amount paid was not paid to get rid of Schuler as managing director and so
increase the efficiency of the company with the objecting of conducting the business on a profitable basis.
The payment was not an outgoing of a capital nature. It was not made for the purpose of acquiring any
new plant or for any permanent improvement in the assets of the business. It was made in connection with
the question of personnel.
Lastly, it was contended on behalf of the respondents that compensation for loss of office is not exigible
to income tax in the hands of the recipient and that any deduction allowed should the tax Schuler would
have had to pay had he earned the amount paid him as compensation for loss of office. In support of this
contention the case of British Transport Commission v Gourley ([1955] 3 All ER 796, [1956] AC 185, 220 LT
354, 100 Sol Jo 12, HL, 3rd Digest Supp) was cited. That case is not an authority for any such proposition.
In that case the question whether the tax position should be taken into account in compensation cases was
expressly left open by the House of Lords. In referring to Comyn v A-G ([1950] IR 142), a case of
compensation for compulsory acquisition of property, Lord Goddard said that he should have thought it
questionable whether a reduction of the amount to be paid as compensation based on prospecting tax
liability of the owner of the capital asset was in accordance with the true principle of valuation. In W Rought,
Ltd v Suffolk CC ([1955] 2 All ER 337, revsd sub nom West Suffolk CC v W Rought, Ltd [1956] 3 All ER 216,
[1957] AC 403, 120 JP 522, 100 Sol Jo 619, 54 LGR 473, HL, 3rd Digest Supp) the Court of Appeal held that
it was not legitimate to make any deduction from the compensation awarded for loss of profits by a
company, in respect of specific orders during the interruption of manufacturing operations by any
consideration of the companys possible tax liability.

The decision of the Court of Appeal was reversed by the House of Lords sub nom West Suffolk CC v W
Rought, Ltd ([1955] 2 All ER 337, revsd sub nom West Suffolk CC v W Rought, Ltd [1956] 3 All ER 216,
[1957] AC 403, 120 JP 522, 100 Sol Jo 619, 54 LGR 473, HL, 3rd Di*gest Supp), who held that in assessing
the amount to be awarded for temporary loss of profits the tax position must be taken into account and the
compensation to be awarded for the loss of profits should be reduced by the amount of additional taxation
which the respondents would have had to bear if they had earned the profits. But the fact is that that
decision is referable only to a case where the compensation is to be assessed

256
on certain principles and awarded. Where the party to be compensated negotiates with another and will
take not less than a certain sum as compensation, the principle inthe Gourley case ([1955] 3 All ER 796,
[1956] AC 185, 220 LT 354, 100 Sol Jo 12, HL, 3rd Digest Supp) has no application. The party to be
compensated will not accept the agreed sum less an amount for tax. He will refuse it. The agreed sum is
what he has bargained for. Whether that sum is or not exigible to tax inthe recipients hand is immaterial.
The appeal succeeds and is allowed. The additional assessment is discharged.
There will be costs to the appellant fixed in the sum of $360.
Appeal allowed.

(1959) 1 WIR 257

Dhanpaul v Demerara Bauxite Company Ltd

SUPREME COURT OF BRITISH GUIANA
LUCKHOO J
16 FEBRUARY, 4, 14 MAY 1959

Landlord and Tenant Monthly tenancy of building land Tenancy not in writing nor registered
Conveyance by transport of property including building land to purchasers without reservation of tenancy
Whether purchasers take transport subject to tenancy Deeds Registry Ordinance, Cap 32 [BG], s 14 (12),
s 23 (1) Landlord and Tenant Ordinance, Cap 185 [BG], s 4, s 6 (2), (4), s 16.
In 1953, the plaintiff became tenant of building land to A under an oral agreement of tenancy paying a
monthly rent. The plaintiff entered into possession of the land, erecting two buildings thereon. In 1957, A,
without notice to the plaintiff, conveyed by way of transport to the defendants certain lands, including the
building land let by A to eh plaintiff. The plaintiffs tenancy was not reserved by the transport and had never
been registered under the provision of the Deeds Registry Ordinance, Cap 32 [BG]. The plaintiff claimed
inter alia damages for trespass.
Held: The defendants took the lands conveyed to them by A free from the plaintiffs tenancy and the
plaintiffs claim in trespass therefore failed.
Judgment for defendants with costs.
Editorial Note: In British Guiana the transfer of immovable property by way of sale is effected by deed of
transport.
Cases referred to
Brydges v Lewis (1842), 3 QB 603, 2 Gal & Dav 763, 11 LJQB 268, 114 ER 639, sub nom Bridges v Lewis,
6 Jur 837, 31 Digest (Repl) 150, 2879
Greenwood v Bairstow (1836), 5 LJ Ch 179, 31 Digest (Repl) 468, 5945
Re Negus [1895] 1 Ch 73, 64 LJ Ch 79, 71 LT 716, 43 WR 68, 39 Sol Jo 29, 13 R 85, 30 Digest (Repl) 473,
1153
Denn d Warren v Fearnside (1747), 1 Wils 176, 95 ER 558, 31 Digest (Repl) 37, 1932
Doe d Dixie v Davies (1851), 7 Exch 89, 21 LJ Ex 60, LTOS 304, 16 Jur 44, 155 ER 868, 31 Digest (Repl)
40, 1978

257
Disdale v Iles (1673), 2 Lev 88, 83 ER 463, sub nom Dinsdale v Isles, 3 Keb 166, sub nom Dinsdale v Isles,
3 Keb 207, T Raym 224, sub nom Hinchman v Iles, 1 Vent 247, sub nom Turleston v Rives, 1 Freem KB
106, 31 Digest (Repl) 41, 1980

Doe d Davies v Thomas (1851), 6 Exch 854, 20 LJ Ex 367, 155 ER 792, 31 Digest (Repl) 37, 1938
Pinhorn v Souster (1853), 8 Exch 763, 1 CLR 99, 22 LJ Ex 266, 21 LTOS 92, 16, 16 Jur 1001, 1 WR 336,
155 ER 1560, 31 Digest (Repl) 40, 1974
Walsh v Lonsdale (1882), 21 Ch D 9, 52 LJ Ch 2, 46 LT 858, 31 Digest (Repl) 255, 3905
James v Lichfiesl (1869), LR 9 Eq 51, 39 LJ Ch 248, 21 LT 521, 18 WR 158, 20 Digest 329, 739
Hunt v Luck [1902] 1 Ch 428, 71 LJ Ch 239, 86 LT 68, 50 WR 291, 18 TLR 265, 46 Sol Jo 229, CA, 20
Digest 330, 744
Daniels v Davison (1809), 16 Ves 249, 33 ER 978, LC, subsequent proceedings (1811), 17 Ves 433 LC, 20
Digest 329, 732
Wilbraham v Livesey (1854), 18 Beav 206, 2 WR 281, 52 ER 81, 20 Digest 328, 724
Remon v City of London Real Property Co [1921] 1 KB 49, 89 LJKB 1105, 123 LT 617, 36 TLR 869 LGR
691, 84 JP Jo 349, CA, 31 Digest (Repl) 638, 7455
Action
Action for declaration of tenancy and for damages for trespass.
In 1953, the plaintiff entered into an oral tenancy of building land, paying a monthly rent to Allicock. He
thereupon entered into occupation of the land, erecting two buildings thereon. Allicock did not have title for
the land at that time but in 1956 he, together with other persons, applied for and obtained prescriptive title of
certain lands, including the building land he had let to the plaintiff. In 1957, Allicock and the other co-owners
of the lands sold and transported the lands to the defendants without reserving the plaintiffs tenancy. The
plaintiff had no notice either that prescriptive title for the lands had been registered in the name of Allicock
and the other co-owners, or that they had sold and transported the lands to the defendants. In 1958, after
the provisions of the Rent Restriction Ordinance, Cap 186 [BG], had been made applicable to the lands, the
defendants informed the plaintiff that they required the land in his occupation. After certain negotiations
between the parties and their legal advisers had broken down, the defendants entered the land in the
plaintiff occupation and removed the plaintiffs buildings to another parcel of land owned by them. The
plaintiff instituted this action for a declaration of tenancy and for damages for trespass by the defendants.
The defendants contended that they took the lands transported by Allicock and the other co-owners free of
the plaintiffs tenancy with Allicock as that tenancy had not been reserved in the transport and had not been
registered under the provisions of the Deeds Registry Ordinance, Cap 32 [BG] Section 6 of the Landlord and
Tenant Ordinance, Cap 185 [BG], require all leases of building land for three years and less to be in writing
and it is provided by s 14 (2) of the Deeds Registry Ordinance, Cap 32 [BG], that no leas of immovable
property shall as against any bona fide transferee of the property for valuable consideration be good, valid,
or effectual in law or pleadable in any court of justice in the Colony unless field as of record in the registry
Section 23 (1) of the Deeds Registry Ordinance provides that every transport of immovable property other
than a judicial sale transport shall vest in the transferee the full and absolute title to the immovable property
or to the rights and interest therein described in the transport, subject to certain specified registered
interests. Registered leases form one class of the specified registered

258
interests. Luckhoo, J, held that the defendants took the lands under transport to them from Allicock and
the other co-owners free of the plaintiffs tenancy.
L F S Burnham (instructed by Ll B Martin) for the plaintiff
J H S Eillott (instructed by H C B Humphrys) for the defendants
Cur adv vult
LUCKHOO J read the following judgment: This action was commenced by the plaintiff filing a writ of
summons on 10 February 1959, indorsed with a claim for:
(a) A declaration that the plaintiff is tenant of a parcel of land situate at Plantation Retrieve or
Speightland East Bank Demerara River in the country of Demerara at a monthly rental of $3.00 on
which said parcel of land the plaintiff has a building and is entitled to possession thereof;
(b) an injunction restraining the defendants their servants and agents from trespassing on the said
parcel of land and dispossessing the plaintiff therefrom or otherwise interfering with the plaintiff in his
possession of the said land;
(c) the sum of $20,000 damages for trespass;
(d) costs.
Together with the writ of summons the plaintiff filed an ex parte application by way of an affidavit sworn
to by him for an interim injunction against the defendants, restraining them from continuing the acts of

trespass and dispossession alleged in his affidavit to have been committed by them between 26 January
1959, and the date of the issue of the writ. On 10 February 1959, the Chief Justice made an order for the
interim injunction as prayed until the hearing of a summons returnable on 16 February 1959, or until further
order, and it was further ordered that the plaintiff be at liberty to issue and serve a summons returnable for
16 February 1959, to continue the injunction along with the writ of summons in the action.
On the summons coming on for hearing before me on 16 February 1959, it was ordered by the court
that in the circumstances of the cases a speedy hearing of the action should take place without a prior
adjudication upon the summons, the interim injunction to continue until further order of the court. It was also
ordered, by consent, that an agreed statement of the facts signed by councel be filed and form part of the
record. This was accordingly done.
On 26 February 1959, counsel made certain legal submissions upon the basis of the contents of the
agreed statement of facts filed. These submissions will be referred to later in this judgment. During the
course of the argument counsel for the plaintiff contended that his client never surrendered possession of
the land in question to the defendants or their agents, while counsel for the defendants contended
otherwise. From the statement of agreed facts filed, it appeared that no clear admission one way or the
other as to this had been made by the parties, and at the suggestion of the court and by agreement of
counsel, sworn evidence on this issue was given on 25 March 1959, by the plaintiff, his wife and son-in-law
and by one of the defendants employees.
The agreed statement of facts filed and the sworn testimony disclose that in the year 1953 one Edmund
Allicock orally let to the plaintiff a parcel of building land at Retrieve, East Bank, Demerara River, at a
monthly rental of $3. Thereafter the plaintiff erected a dwelling house he used partly as a residence for
himself, his wife and their children and his son-in-law Deonarain Deoraj, and partly as rooms which he let to
other persons. In the shop premises he carried on a business, the nature of the stock in trade not being
stated in the statement of agreed facts nor in the sworn testimony.
At the commencement of the plaintiffs tenancy Edmund Allicock did not have title to the building land let
to the plaintiff and in October 1959, Allicock 259 and other persons entered into an agreement with the
defendants to the effect that the former would apply for title by prescription of certain lands at Retrieve
(including the building land occupied by the plaintiff) and that upon issue to them of such title, they would
advertise and pass and execute transport therefor to and in favour of the defendants. The plaintiff had no
knowledge or notice of this agreement. Prescriptive title of the lands was granted to Edmund Allicock and
others on 31 December 1956, and registered in their names on 8 January 1957.
On 19 January 1957, Edmund Allicock and the other co-owners of the lands passed transport thereof to
and in favour of the defendants. The plaintiff had no knowledge or notice of the advertisement or passing of
that transport.
The plaintiff at no time registered the tenancy which had been granted to him by Edmund Allicock and
he did not oppose either the grant of prescriptive title to Allicock and the other co-owners or the passing or
transport of the lands by them to the defendants.
The defendants purchased the lands at Retrieve for the purpose inter alia of erecting a high school for
the secondary education of children in the area, and will be unable to complete the school unless they obtain
possession of the land occupied by the plaintiff. For that purpose the defendants have at their own expense
been removing the houses of occupiers in that area and re-erecting them in re-settlement areas. All persons
who occupied the area required for the erection of the high school building have had their buildings
removed.
On 8 October 1959, the defendants wrote to the plaintiff requiring him to deliver to them within six
weeks of that date the vacant possession of the land occupied by him and informing him that they would
provide an alternative lot for his occupation at an annual rental of fifty cents, and would assist with the
transportation of his belongings.
On 24 October 1958, there began negotiations by way of correspondence and interviews between Sir
Eustace Woolford, Q C , barrister-at-law acting for and on behalf of the plaintiff and the defendants, and their
legal advisers Messrs. Cameron & Shepherd, solicitors.
At first the plaintiff sought to get the defendants to extend the time for his delivering up possession of
the land. The defendants desired to have the plaintiffs assurance in writing that the would vacate the land
on 6 January 1959, the plaintiffs legal adviser stated that it was his view that the notice to quit given in
October 1958, by the defendants to the plaintiff was neither legal nor enforceable and asked that the
company might give consideration to the purchase of the plaintiffs property. By a letter dated 20 January
1959, the defendants served notice upon the plaintiff of their intention within 7 days of the date of the letter
to remove the plaintiffs buildings from the land.
On 21 January 1959, Mr H C B Humphrys, a partner of the firm of Cameron & Shepherd, the
defendants solicitors, delivered to Sir Eustace Woolford a letter dated 21 January 1959, in the following
terms:
21st January 1959.

Sir Eustace Woolford, OBE, QC.

Barrister-at-law,
Chambers, Georgetown.
Dear Sir,
With reference to our letter to you of the 19th January 1959, we confirm your conversation this
morning with Mr H C B Humphrys, when you informed us that your client, Mr Dhanpaul, was asking
only that the Demerara Bauxite Company Limited should undertake not only to remove your clients
building from its present site but to re-erect it on the alternative site which has been indicated to him,
and that if the company agreed to do this Mr Dhanpaul would forthwith deliver up the premises to the
company.

260
We have been instructed by the company to inform you that they are willing to accede to your
clients request and have so informed Mr Snijders at Mackenzie, whom your client should now see with
a view to arranging for the effective carrying out of the work at the earliest possible opportunity.
You also asked us to enquire from the Company whether there was any prospect of Mr Dhanpaul
obtaining employment from the Company. We have passed on your enquiry with the request that this
application be given favourable consideration if a suitable vacancy occurs.
We should be obliged if you would sign and return to us the enclosed carbon copy of this letter in
confirmation of your clients satisfaction of the arrangement.
Yours faithfully,
Cameron & Shepherd.
Sir Eustace Woolford signed and returned the carbon copy of that letter to Mr Humphrys on 21 January
1959.
On 26 January 1959, the plaintiffs solicitor wrote to the defendants as follows:
26th January 1959.
J N Fraser Esq.
Dear Sir, I have just been informed that the cost of the removal of Mr Dhanpauls building from its
present site to the new site will be in the neighbourhood of about $6,000.00. I have asked Dhanpaul to
see you and explain that if you can see your way to do it he will accept a lesser sum and have the
house removed to some other site on the other side of the river which he says he can obtain.
The only objection that he appears to have now is that the new site is not only insanitary but is an
isolated spot where it will be impossible for him successfully to carry on a shop business.
I remain,
Yours faithfully,
(Signed) Eustace G Woolford.
It is stated in Mr Humphrys affidavit referred to by counsel for the plaintiff in the course of the argument
that Mr Humphrys again saw Sir Eustace Woolford, who in the presence of the plaintiff and his wife informed
Mr Humphrys that the plaintiff was dissatisfied with the agreement, that he wished the company to consider
an alternative arrangement whereby the plaintiff should at his own expense remove the buildings to a site
across the Demerara River and that the defendants should assist him financially in the cost of the said
removal.
Whether this occurred before or after 26 January 1959, the date of Sir Eustace Woolfords letter to the
defendants setting out a proposal in similar terms, is not clear. I find from the sworn testimony that at 7 am
on 26 January 1959, the defendants workmen, against the plaintiffs will and contrary to his express
directions, removed the plaintiffs buildings. The plaintiff subsequently left Retrieve to consult counsel in
Georgetown. Later the plaintiff withdrew his instructions from Sir Eustace Woolford and consulted Messrs.
Clarke and Martin, his solicitors in this action. The removal by the defendants of the plaintiffs buildings to a
new site was completed on 10 February 1959. The plaintiffs dwelling house was removed without being
dismantled, the occupants remaining therein while it was transported from the old site to the new site. The
plaintiff, however, during the period of removal was deprived of the use of his kitchen and of the conduct of
his trade in the shop. His lodgers also vacated the premises on 26 January the date of the commencement
of the removal, and have not since returned.

261
In the course of his evidence the plaintiff has stated that he does not desire to have the buildings
returned to their old site and would be content with an award of damages. In view of this counsel for the
plaintiff quite properly stated that he could no longer support the continuation of the interim injunction which
was accordingly discharged.

For the plaintiff it was contended that on the passing of transport by Allicock to the defendants of the
lands at Retrieve the plaintiff became by operation of law a contractual tenant of the defendants of the
building land let by Allicock to the plaintiff on the same terms as those under the original letting.
It is common ground that the provisions of the Rent Restriction Ordinance, Cap 186 [BG], were
extended by the Rent Restriction Extension Order, 1958, No 14 of 1958 [BG], to include the lands at
Retrieve with effect from 22 March 1958.
If the plaintiff became the defendants tenant on the passing of transport to them by Allicock then the
defendants could only obtain possession of the land occupied by the plaintiff by an order of the Rent
Assessor under the provisions of the Rent Restriction Ordinance.
Counsel for the defendants has submitted that on the passing of transport by Allicock to the defendants,
the plaintiff, not having attorned tenant to the defendants, became a trespasser and could be ejected by the
defendants without an order of the Rent Assessor or of any other tribunal.
Section 4 of the Landlord and Tenant Ordinance, Cap 185 [BG], provides as follows:
4. (1) It is hereby declared that the tenancies defined in section 3 of this Ordinance comprise, and
have always since the 1st January 1917, comprised, the relationships between landlord and tenant in
this Colony and that every such tenancy, as the case may be, had and, subject to the provisions of this
Ordinance, shall continue to have in this Colony such and the same qualities and incidents as it has by
the common law of England.
(2) It is further declared that the common law of England relating to the said respective tenancies
has, since the 1st January 1917, applied in this Colony, and subject to the provisions of this Ordinance,
shall continue to apply to and to govern the said tenancies.
At common law in England a devise of the reversion upon a lease was effectual to place the devisee in the
position of landlord to the lessee and to entitle him to the rent reserved by the lease without any attornment
by the tenant; but a grant of the reversion was not complete without attornment. The statute of 4 & 5 Ann
(1705), Cap 3 [UK], ss 9, 10 (since repealed), virtually abolished the necessity for attornment upon
conveyance of the reversion upon a lease and provided that the tenant was not prejudiced by payment of
rent to the grantor before notice of the grant given to him by the grantee. The statute applied to all tenancies
even though by instrument not under seal (Brydges v Lewis ((1842), 3 QB 603, 2 Gal & Dav 763, 11 LJQB
268, 114 ER 639, sub nom Bridges v Lewis, 6 Jur 837, 31 Digest (Repl) 150, 2879). Under the statute, after
purchase the tenant held of the grantee on the same terms as previously he held of the grantor until the
tenancy was regularly determined either by the landlord or tenant (Greenwood v Bairstow ((1836), 5 LJ Ch
179, 31 Digest (Repl) 468, 5945). The statute as amended by s 11 of the Distress for Rent Act, 1737 [UK],
has been replaced by the provisions of s 151 of the Law of Property Act, 1925 [UK]. These latter provisions
have been enacted in this Colony by s 16 of the Landlord and Tenant Ordinance, Cap 185 [BG].
Counsel for the defendants has pointed out that the provisions of s 6 (2) of the Landlord and Tenant
Ordinance, Cap 185 [BG], require that every lease for a term of three years or less shall be in writing (in
England such a lease may be by parol), and that by s 14 (2) of the Deeds Registry Ordinance, Cap 32 [BG]
(which, as stated by s 6 (4) of the Landlord and Tenant Ordinance, Cap 185 [BG], shall apply to every lease
not a long lease) no 262 lease of any immovable property shall as against any bona fide transferee of the
property for valuable consideration be good, valid or effectual in law or pleadable in any Court of Justice in
the Colony unless filed as of record in the registry.
The question arises as to whether there can be under the law a periodic lease. Both counsel agreed
that there can be.
By s 2 of the Landlord and Tenant Ordinance, Cap 185 [BG], it is provided that in that Ordinance, unless
the context otherwise requires, lease includes under-lease and assignment operating as a lease or underlease.
Under the heading Capacity for Letting and Taking on Hire Land and Buildings there appears one
sections 5which provides as follows:
5. (1) Capacity to enter into an agreement for a lease or to enter into any of the tenancies defined
in this Ordinance is regulated by the general law concerning capacity to contract or to dispose of and
acquire property.
(2) All persons not under legal disability may grant leases for such terms as are consistent with
their right, title or interest in the land or buildings, and all persons under no legal incapacity may hold
leases.
Under the heading Provisions Relating to Leases appears s 9, which relates to persons holding over
after expiration of a tenancy for years or from year to year.
Those provisions and more especially s 9 confirm counsels view in that respect.

It may not be considered out of place to refer to Re Negus ([1895] 1 Ch 73, 64 LJ Ch 79, 71 LT 716, 43
WR 68, 39 Sol Jo 29, 13 R 85, 30 Digest (Repl) 473, 1153), where Chitty J, said:
The term lease is used in strict law so as to include any demise, for any period however short or
however long, and it is sufficient for this purpose to refer to the Statute of Frauds [UK], the first section
of which, as is well known, enacts that all leases by parol, and not put in writing and signed by the
parties making or creating the same or their agents thereunto lawfully authorised by writing, shall have
the force and effect of leases or estates at will only. The term lease is well known to the old lawyers
and, I hope, to the modern ones. Then comes the 2nd section, which contains a well-known
exception, though it still speaks of the excepted things as leases: Except all leases not exceeding the
term of three years from the making thereof. I need not read the rest. So that the Statute of Frauds
shews upon the very face of it that that which is a demise for a term not exceeding three years still is
properly called at law a lease, and that a lease may be made without any document whatever, but
simply by word of mouth. Later in the same Act, the distinction between a lease, and an agreement for
a lease, is maintained, because where the instrument is an agreement for a lease in the strict sense of
the term, there the 4th section applies, that being a contract of that means concerningland.... I
agree that in ordinary parlance, and in conventional language, it may fairly be said that a distinction is
constantly made between a tenancy and a lease, and I daresay many solicitors speaking to their
clients talk of a lease in the sense of meaning a lease which the law requires to be by deed; but I am
unable to say that I can introduce this same loose parlance into the rule.
It is to be observed that s 3 (D) (d) of the Civil Law of British Guiana Ordinance, Cap 2, adapts the
Statute of Frauds, 1677, and is as follows:
(d) no action shall be brought whereby to charge anyone upon any lease of immovable property
for a period exceeding one year, or any contract or agreement for the sale, mortgage, or lease of
immovable property or any interest in or concerning immovable property, or
any declaration, creation, or assignment of any trust relating to 263 immovable property, unless the
agreement or some memorandum or note thereof is in writing and signed by the party to be charged or
some other person thereunto by him lawfully authorised.
Accepting that as the true position the plaintiff had entered into a lease with Allicock which had failed to
comply with the requirement of s 6 (2) of the Landlord and Tenant Ordinance, Cap 185 [BG], that it must be
in writing. It was therefore a void lease.
In England, where a tenant enters into possession under the void lease and pays rent to his landlord he
becomes a tenant at will of his landlord (Denn d Warren v Fearnside ((1747), 1 Wils 176, 95 ER 558, 31
Digest (Repl) 37, 1932). Where an act is done by the lessor which is inconsistent with such a tenancy the
tenancy is impliedly determined. Where the lessor conveys the reversion, that is an act done off the
premises which impliedly determines the tenancy (Doe d Dixie v Davies ((1851), 7 Exch 89, 21 LJ Ex 60,
LTOS 304, 16 Jur 44, 155 ER 868, 31 Digest (Repl) 40, 1978) and Turleston v Rives ( 1 Freem KB 106, 31
Digest (Repl) 41, 1980) when the tenant has notice or knowledge of it (Doe d Davies v Thomas (1851), 6
Exch 854, 20 LJ Ex 367, 155 ER 792, 31 Digest (Repl) 37, 1938. If it is an act done off the premises but the
tenant does not at that time have notice or knowledge of it, the tenancy is not determined until the tenant
has notice or knowledge of it (Doe d Davies v Thomas ((1851), 6 Exch 854, 20 LJ Ex 367, 155 ER 792, 31
Digest (Repl) 37, 1938.) and Pinhorn v Souster ((1853), 8 Exch 763, 1 CLR 99, 22 LJ Ex 266, 21 LTOS 92,
16, 16 Jur 1001, 1 WR 336, 155 ER 1560, 31 Digest (Repl) 40, 1974).
It was contended by counsel for the plaintiff that under the doctrine in Walsh v Lonsdale ((1882), 21 Ch
D 9, 52 LJ Ch 2, 46 LT 858, 31 Digest (Repl) 255, 3905) the plaintiffs oral agreement though void as a lease
was a good agreement and might be enforced in equity, and should be regarded as if it were in fact in
writing.
I do not think that this doctrine can be invoked in this case in the way suggested by counsel for the
plaintiff. Section 6 (1) of the Landlord and Tenant Ordinance, Cap 185 [BG], provides that if a lease which is
required to be made by deed is not made by deed it shall have the force and effect of an agreement for a
lease only. Subsection (3) of that section provides that every agreement for a lease made in writing and
orally under which the person to become lessee went into possession of the lands or buildings, shall take
effect and be construed as a tenancy from year to year from the date of the entry into possession and until
the lease has been actually executed. In such circumstances it would be strange if a lease, required to be in
writing but instead made orally, should nevertheless be regarded as if it had in fact been made in writing.
In this case the agreed facts are silent as to the point of time when the plaintiff first became aware of the
conveyance to the defendants. Advertisement of the transport in the Gazette is not deemed to be notice to
the tenant. There is no evidence from which it can reasonably be inferred that the plaintiff did in fact
become in any way aware of that fact before the provisions of the Rent Restriction Ordinance became

applicable to the land in question. Under that Ordinance a landlord includes any person from time to time
deriving title under the original landlord. Counsel for the defendants, however, has submitted that by the
provisions of s 23 (1) of the Deeds Registry Ordinance, Cap 32 [BG], title to the land is passed free of
tenancies which are not registered leases and that as transport to the defendants had been passed prior to
the coming into operation of the Rent Restriction Extension Order, 1958 [BG], the defendant took the
property free of the plaintiffs tenancy. As I understand the submission of counsel for the defendants in this
respect, it does not matter whether the plaintiffs tenancy is regarded as an interest at will only, or an
unregistered oral monthly tenancy or an unregistered monthly lease in writing. Subsection (1) of s 23
provides as follows:
From and after the 1st January 1920, every transport of immovable property other than a judicial
sale transport shall vest in the transferee the full and absolute title to the immovable property or to the
rights and interest therein described in that transport, subject to

264
(a) statutory claims;
(b) registered incumbrances;
(c) registered interests registered before the date of the last advertisement of the transport in the
Gazette:
(d) registered leases registered before the date of the last advertisement of the transport in the
Gazette :
Provided that any transport, whether passed before or after the 1st January 1920, obtained by
fraud shall be liable in the hands of all parties or privies to the fraud to be declared void by the Court in
any action brought within twelve months after the discovery of the fraud, or from the 1st October 1925,
whichever is the more recent.
Counsel for the plaintiff has contended that the provisions of s 23 (1) of the Deeds Registry Ordinance
notwithstanding, the defendants are bound by the tenancy granted by Allicock to the plaintiff as a tenants
occupation gives constructive notice of the tenants right. He cited James v Lichfield ((1869), LR 9 Eq 51, 39
LJ Ch 248, 21 LT 521, 18 WR 158, 20 Digest 329, 739) and Hunt v Luck ([1902] 1 Ch 428, 71 LJ Ch 239, 86
LT 68, 50 WR 291, 18 TLR 265, 46 Sol Jo 229, CA, 20 Digest 330, 744) in support of this contention. In
Daniels v Davison ((1809), 16 Ves 249, 33 ER 978, LC, subsequent proceedings (1811), 17 Ves 433 LC, 20
Digest 329, 732) the possession of a tenant was held to be notice to a purchaser of the nature and extent of
his interest, and in Wilbraham v Livesey ((1854), 18 Beav 206, 2 WR 281, 52 ER 81, 20 Digest 328, 724) the
purchaser of a property was held to have notice of the interest of the tenant in possession.
In James v Lichfield ((1869), LR 9 Eq 51, 39 LJ Ch 248, 21 LT 521, 18 WR 158, 20 Digest 329, 739)
((1869), LR 9 Eq at pp 54 and 55) Romilly, M R, in referring to Daniels v Davison ((1809), 16 Ves 249, 33 ER
978, LC, subsequent proceedings (1811), 17 Ves 433 LC, 20 Digest 329, 732) said:
The case of Daniels v Davison ((1809), 16 Ves 249, 33 ER 978, LC, subsequent proceedings
(1811), 17 Ves 433 LC, 20 Digest 329, 732) determined that, as between the tenant himself and the
purchaser, the purchaser was bound to inquire, and could not dispute the tenants right. Does that
duty apply to the case between vendor and purchaser as well as between purchaser and tenant? I
have found no case exactly in point, but the principle appears to me to be the same, and to be
applicable to both cases. Why is the purchaser bound to inquire as regards the tenant, and yet not
bound to inquire as regards his rights against the vendor? The principle is thus stated in argument in
that case: Whatever puts a purchaser upon inquiry shall be held notice; and if therefore he knows that
a tenant is in possession, he is considered as having notice of the whole extent of his interest.
There can be no doubt that the plaintiff was in occupation of the building land at the time of the conveyance
by Allicock to the defendants. The defendants must therefore be held to have notice of the whole interest of
the plaintiff. It is true, as Vaughan Williams LJ, stated in the Court of Appeal in the latter case, that, under
the old law and quite apart from the provisions of the Conveyancing Act, 1882 [UK], a rule established was
that a tenants occupation is notice of all that tenants rights. But there was no provision which required the
tenants interest in any of those cases to be registered. The object of registration of a lease under the
Deeds Registry Ordinance is to give notice of the existence of the lease to, amongst others, a purchaser of
the immovable property in respect of which the lease has been granted. Unless reserved by the
conveyance itself, interests in immovable property which are required to be registered, if not registered are
void against a purchaser even if he has actual notice of those interests. That is so in this Colony as it is in
England.
In 1920, when the provisions of s 23 of the Deeds Registry Ordinance, now Cap 32 [BG], came into
operation there were no provisions existing in the laws of this Colony similar to those enacted by 4 & 5 Ann
(1705), Cap 3 [UK], ss 9 and 10, now re-enacted by s 151 of the Law of Property Act, 1925 [UK]. The

English Common Law requirement of attornment by a tenant to a purchaser of the reversion was in force,
except that s 23 (1) (d) of the Deeds Registry Ordinance [BG] provided that transport of immovable property
to a transferee was passed subject to registered leases. Further, 265s 14 (2) of the Deeds Registry
Ordinance, Cap 32 [BG], provides as follows :
No lease of any immovable property, or any surrender, transfer, or assignment thereof, shall, as
against any bona fide transferee of the property for valuable consideration be good, valid, or effectual
in law or pleadable in any court of justice in the Colony unless filed as of record in the registry.
Section 16 of the Landlord and Tenant Ordinance (now Cap 185) was enacted in 1947 and contains
provisions similar to those of s 151 of the Law of Property Act, 1925 [UK]. At the same time s 6 was enacted
and sub-s (4) of that section preserves the effect of the provisions of s 14 (2) of the Deeds Registry
Ordinance in respect of leases.
By s 23 (1) of the Deeds Registry Ordinance, where the lease is registered the purchaser takes subject
to an existing lease without any necessity for attornment by the tenant even though in the transport to the
purchaser it is not stated that the property is passed subject to the lease.
Section 16 (1) of the Landlord and Tenant Ordinance, Cap 185 [BG], in effect provides that where it is
stated in a conveyance of immovable property that it is conveyed subject to an existing lease the transferee
takes subject to the lease whether or not the lease is registered and without any necessity for formal
attornment by the lessee.
It might at first sight appear that the provisions of s 14 of the Deeds Registry Ordinance are not in
harmony with those of s 23 (1), for in the latter subsection it is provided that a transferee, whether bona fide
for valuable consideration or not, takes the property subject to registered leases while in the former section it
is provided that no lease of immovable property shall as against any bona fide transferee of the property for
valuable consideration be good, valid or effectual in law or pleadable in any court of justice in the Colony
unless filed as of record in the registry. However, once it is observed that s 14 deals not only with leases
simpliciter but also with surrenders, transfers and assignments of leases, the apparent lack of harmony
between the two provisions disappears.
The provisions of s 23 (1) of the Deeds Registry Ordinance, Cap 32 [BG], in my opinion clearly
conclude the matter in the way contended for by counsel for the defendants, that is that the transferee takes
the property free from tenancies which are not registered leases. The plaintiff became a trespasser or at the
most a licensee on the passing of transport of the property to the defendants. It may well be argued that he
could not be treated as a trespasser until he had knowledge of the conveyance to the defendants. But he
would not be a tenant of the defendants. He would, in my view, be a licensee. Further, any permission
given him by the defendants to remain on the land pending removal of his house may be regarded at the
most as a licence. In the circumstances set out in the admitted statement of facts and related in the oral
testimony the plaintiff was given reasonable and adequate time to vacate the premises. When he failed to
do so the defendants were justified in removing the plaintiffs building from the land.
Counsel for the plaintiff has further contended that the plaintiff in this case could be considered in the
same position as the plaintiff in the case of Remon v City of London Real Property Co ([1921] 1 KB 49, 89
LJKB 1105, 123 LT 617, 36 TLR 869 LGR 691, 84 JP Jo 349, CA, 31 Digest (Repl) 638, 7455).
In that case, by an agreement in writing dated 15 December 1915, the defendants let to Remon, the
plaintiff, two rooms on a quarterly tenancy upon the terms that possession of the premises should be
surrendered at least four clear days before the quarter day for which any notice to quit might have been
given. On 25 February 1920, the defendants gave the plaintiff notice to quit on 24th June next or at the
expiration of your tenancy which shall expire next after the end of half a year from the delivery of this notice.
In March 1920, the defendants let the premises to another tenant. The plaintiff did not yield

266
up the premises but remained in possession until the passing of the Increase of Rent and Mortgage
Restriction Act, 1920 [UK]. The defendants then entered the premises and retook possession. It was held
by the Court of Appeal (affirming the judgment of Mccardie J) that although the agreement of tenancy had
come to an end by the notice to quit, the rooms were let within the meaning of s 12 (2) of the Act of 1920,
and the plaintiff was a tenant who by virtue of the provisions of the Act retained possession within the
meaning of s 15 (1) of the Act, and that the defendants, the landlords, could not lawfully disturb him in his
possession.
In the course of his judgment Bankes LJ, said ([1921] 1 KB at p 54) :
In no ordinary sense of the word was the respondent a tenant of the premises on 2 July. His term
had expired. His landlords had endeavoured to get him to go out. He was not even a tenant at
sufferance. It is however clear that in all the Rent Restrictions Acts the expression tenant has been
used in a special, a peculiar sense, and as including a person who might be described as an extenant, someone whose occupation had commenced as tenant and who had continued in occupation
without any legal right to do so except possibly such as the Acts themselves conferred upon him. The

respondent therefore on the coming into operation of the new Act was a tenant within the meaning of
that expression in the Act, and as the Act for the first time included business premises within its
protection, the premises were not excluded on the ground that they were business premises only.
And Scrutton LJ, said (Ibid, at p 58) :
If a tenant by agreement whose tenancy had expired was not within those terms, the whole
purpose of the Act would have been defeated, for it was obviously intended to allow former tenants
who were willing to carry out the terms of their old tenancy, as modified by any permissible statutory
increases of rent, to stay on. If this was not so every weekly or monthly tenant, the small tenant for
whose benefit the Acts were obviously framed, was outside the Act. Unless tenant includes a former
tenant by agreement holding over against the will of the landlord, and letting includes the landlords
relation to such a tenant, the whole object of the Acts is defeated. It is true that some of these persons
would never previously have been called tenants by any lawyer. The nearest approach to them is
tenant by sufferance, who as Lord Coke says: entreth by a lawfull lease and holdeth over by wrong,
whose tenure was probably invented to prevent their obtaining a title by adverse possession as
disseisors. But tenants by sufferance seem to have been confined to persons who held over without
the assent or dissent of their landlords, and not to have included persons who held over wrongfully in
spite of the active objection of their landlords. Yet I think it is clear Parliament has intended to confirm
these people in a statutory tenancy and to speak of their position as a letting.
The position in the present case is very different. On the passing of transport to the defendants in January
1958, by operation of s 23 (1) of the Deeds Registry Ordinance, the plaintiff did not become the tenant of the
defendants even though he continued in occupation of the land. As between the defendants and the plaintiff
the relationship of landlord and tenant never existed. The Remon v City of London Real Property Co case
([1921] 1 KB 49, 89 LJKB 1105, 123 LT 617, 36 TLR 869 LGR 691, 84 JP Jo 349, CA, 31 Digest (Repl) 638,
7455) therefore, in my view, has no application to the facts of the present case. Had there existed between
them at some time the relationship of landlord and tenant, the Remon v City of London Real Property Co
case ([1921] 1 KB 49, 89 LJKB 1105, 123 LT 617, 36 TLR 869 LGR 691, 84 JP Jo 349, CA, 31 Digest (Repl)
638, 7455) might well have been applicable.
In the result the plaintiffs claim fails and must be dismissed with costs to be taxed.
Judgment for defendants with costs.

267
(1959) 1 WIR 268

Farrar v Inland Revenue Commissioners

Way v Inland Revenue Commissioners
Medlam v Inland Revenue Commissioners
Milliken v Inland Revenue Commissioners
Golding v Inland Revenue Commissioners
Leeming v Inland Revenue Commissioners
SUPREME COURT OF BRITISH GUIANA
LUCKHOO J
11 MAY, 27 JUNE 1959

Income Tax Deduction in ascertaining chargeable income Amounts paid at end of successive years
under Deed of Dissolution of Articles of Partnership to retiring partner by continuing and new partners
Whether annual payments -Income Tax Ordinance, Cap 299 [BG] s 12 (1) (f), s 14 (c).

Four of the taxpayers in partnership with one Heald carried on the business or profession of public
accountants. Under a deed of dissolution the articles of partnership were dissolved by mutual consent,
Heald retiring from the business and two new partners, the other two taxpayers, entering into partnership
with the above mentioned four taxpayers to carry on the business under the same name and style. Under
the deed of dissolution all of the taxpayers agreed to purchase the share of Heald in the partnership and the
capital effects and goodwill thereof for the sum of $126,868.45 of which $19,000 was paid leaving a balance
of $107,868.45, and Heald agreed to subscribe $9,300 towards pensions payable to old employees of the
old partnership, that sum to be deducted from annual instalments payable by the taxpayers to Heald on 31
December in the years 1955, 1956, 1957, 1958 and 1959 in respect of the above mentioned sum of
$107,868.45 in five equal annual instalments in certain specified proportions. The taxpayers claimed that
the amounts paid by them to Heald less the amounts paid by Heald towards pensions payable to old
employees of the old partnership were annual payments payable by them by virtue of a deed and were,
under the provisions of s 12 (1) (f) of the Income Tax Ordinance, Cap 299 [BG], deductible in ascertaining
their chargeable incomes.
Held: (i) The amounts paid by the taxpayers were payments made in respect of a capital transaction and by
s 14 (c) of the Income Tax Ordinance, Cap 299 [BG], were not allowable as deductions in ascertaining the
taxpayers chargeable incomes.
(ii) The amounts paid by the taxpayers were not annual payments within the meaning of that expression in
s 12 (1) (f) of the Income Tax Ordinance, Cap 299 [BG].
Appeals dismissed.
Cases referred to
Pretty v Solly (1859), 26 Beav 606, 33 LTOS 72, 53 ER 1032, 42 Digest 672, 832
De Winton v Brecon Corpn (1859), 26 Beav 533, 28 LJCh 600, 33 LTOS 296, 23 JP 627, 5 Jur NS 882, 53
ER 1004, 42 Digest 672, 831
Schuler v Inland Revenue Comrs (1958), (British Guiana)
Inland Revenue v Hogarth [1941] SC 1, 23 Tax Cas 491, 2nd Digest Supp
In re Joseph Galvan Kelshall (1940), (Trinidad and Tobago)
In re Patrick Duffield McDermott (1956), (Barbados)
Appeal
Appeal by the taxpayers from a decision of the Commissioners of Inland Revenue rejecting the taxpayers
objection to an additional assessment.

268
J H S Elliott (instructed by Cameron and Shepherd) for the appellants
G A S Van Sertima Crown Counsel (instructed by Crown Solicitor) for the respondents
LUCKHOO J. These are six appeals from decisions of the Commissioners of Inland Revenue and have
been heard together by consent of counsel for the appellants and for the respondents.
The facts hereunder stated are taken largely from the statements of material facts filed in the appeals.
Mr Stanley Heald, a chartered accountant, and the appellant Medlam were, prior to 5 July 1948,
carrying on the business or profession of public accountants in this Colony in partnership under the name
and style of Fitzpatrick, Graham & Co, Chartered Accountants. On 5 July 1948, articles of partnership were
entered into between Mr Heald and the appellants Medlam, Farrar, Milliken and Way under the same name
and style. By a deed of dissolution dated 30 June 1955, the articles of partnership dated 5 July 1948, were
dissolved by mutual consent, Mr Heald retiring from the business on 31 December 1954, and two new
partners, the appellants Golding and Leeming, entering into partnership with the other appellants to carry on
the business or profession of public accountants in this Colony under the same name and style.
Under the deed of dissolution, the appellants agreed to purchase the share of the retiring partner Mr
Heald in the partnership and the capital effects and goodwill thereof for the sum of $126,868.45, of which the
sum of $19,000 in respect of capital and capital effects with interest thereon at 5% per annum was paid on
28 June 1955, leaving a balance of $107,868.45 payable to Mr Heald in respect of goodwill and his share in
the partnership by the appellants in certain specified proportions. It was provided in the deed of dissolution
that Mr Heald would subscribe the sum of $9,300 towards pensions payable to old employees of the old
partnership, that sum to be deducted from annual instalments payable by the appellants as is indicated
hereunder to Mr Heald in respect of the sum of $107,868.45 above mentioned. It was also provided by the
deed of dissolution that the appellants should pay to Mr Heald on the 31st days of December in the years

1955, 1956, 1957, 1958 and 1959 as purchase money for and in full satisfaction of his share in the late
partnership and the goodwill thereof the said sum of $107,868.45 without any interest thereon in five equal
annual instalments in certain specified proportions. It was further provided in the deed that on the
occurrence of any of certain other specified circumstances in every such case the balance of the said
partners proportion of the said purchase price shall immediately become due and payable notwithstanding
that the same has not become payable as is herein provided and the retiring partner (Mr Heald) shall have a
lien or first charge over the share of the said partner in the firm in respect of the said proportion of the
purchase price.
In their returns for the years of assessment 1956 and 1957, the appellants claimed as deductions the
various amounts paid by them to Mr Held less the amounts paid by Mr Heald towards pensions payable to
old employees of the old partnership. The appellants were provisionally assessed on the basis of their
returns. Later the Commissioner disallowed the appellants claims for deductions and assessed the
appellants additionally on those amounts of deductions. The appellants objected to the additional
assessments and on the hearing of the appellants objections the Commissioners rejected the appellants
contentions and confirmed the additional assessments. It is against those decisions of the Commissioners
that the appellants have appealed.
Counsel for the appellants submitted that the instalments payable by the appellants to Mr Heald for and
in satisfaction of his share in the late partnership and the goodwill thereof are annual payments payable as a
charge on property of the appellants by virtue of a deed within the contemplation of s 12 (1) (f) of the Income
Tax Ordinance, Cap 299 [BG]. He conceded

269
that the payments were in respect of a capital transaction but contended that such payments were
permitted as deductions in ascertaining the chargeable incomes of the appellants.
It was submitted by counsel for the respondents that each payment was capital withdrawn and was a
prohibited deduction by virtue of s 14 (c) of the Ordinance and that in any event the payments were not
annual payments within the contemplation of s 12 (1) (f) of the Ordinance.
Section 12 (1) (f) of the Ordinance provides as follows:
12 (1) For the purpose of ascertaining the chargeable income of any person there shall be
deducted all outgoings and expenses wholly and exclusively incurred during the year immediately
preceding the year of assessment by that person in the production of the income, including
****
(f)annuites or other annual payments, whether payable within or without the Colony, either as a
charge on any property of the person paying them by virtue of any deed or will or otherwise, or as a
reservation thereout, or as a personal debt or obligation by virtue of a contract, provided that no
voluntary allowances or payments of any description be deducted.
Section 14 (c) provides as follows:
14 For the purpose of ascertaining the chargeable income of any person no deduction shall be
allowed in respect of
****
(c) any capital withdrawn or any sum employed or intended to be employed as capital.
In reply counsel for the appellants contended that the provisions of s 14 (c) appear to be repugnant to
those of s 12 (1) (f) and that the former which are general provisions do not affect the latter which are
specific. In support of his contention counsel referred to Craies On Statute Law (5th Edn) at pp 205 and 206
where the following appears:
General and specific enactments; construction if repugnant. Acts of Parliament sometimes contain
general enactments relating to the whole subject-matter of the statute, and also specific and particular
enactments relating to certain special matters; and if the general and specific enactments prove to be
in any way repugnant to one another, the question will arise, Which is to control the other? In Pretty v
Solly ((1859), 26 Beav 606, 33 LTOS 72, 53 ER 1032, 42 Digest 672, 832) Romilly MR, stated as
follows what he considered to be the rule of construction under such circumstances. The general
rules, said he, which are applicable to particular and general enactments in statutes are very clear;
the only difficulty is in their application. The rule is, that whenever there is a particular enactment and
a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would
overrule the former, the particular enactment must be operative, and the general enactment must be
taken to affect only the other parts of the statute to which it may properly apply. For instance, said the

same judge in De Winton v Brecon Corpn (1859), 26 Beav 533, 28 LJCh 600, 33 LTOS 296, 23 JP
627, 5 Jur NS 882, 53 ER 1004, 42 Digest 672, 831), if there is an authority in an Act of Parliament to
a corporation to sell a particular piece of land, and there is also a general clause at the end that
nothing in the Act contained shall authorise the corporation to sell any land that would not control the
particular enactment, but the particular enactment would take effect notwithstanding that it was not
clearly expressed and distinct and the insertion of the exception in the general clause would be
supplied. If the Court finds a positive inconsistency and repugnancy, it may be difficult to deal with it,
but, so far as it can, it must give effect to the whole of the Act of Parliament.
Counsel for the appellants has submitted that the provisions of s 13 (which

270
relate to allowances for wear and tear) would be otiose if regard be had to s 14. The provisions which
now appear in s 13 were enacted in 1951 some twenty-two years after the provisions of s 14 had been
enacted. Section 13 specifically makes provision for the deduction of an amount for wear and tear of plant,
machinery or equipment used by the taxpayer in his trade, business, profession or vocation. If, as it
appears, ss 13 and 14 (c) and (d) are considered repugnant the one to the other, then s 13, the specific
enactment, would prevail.
Before proceeding to consider whether the provisions of s 14 (c) are repugnant to those of s 12 (1) (f)
reference must be made to the contention of counsel for the appellants that the provisions of paragraph (f) of
s 12 (1) of the Ordinance are not to be restricted to outgoings and expenses wholly and exclusively incurred
in the production of the income within the meaning of that expression as it appears in the subsection
preceding the word including. The use of the word including introducing the following paragraphs in that
subsection, as I have pointed out in Schuler v Inland Revenue Comrs ((1958), (British Guiana)), decided on
26 April 1958, enlarges the scope of the deductions which are allowed under that part of the subsection
which precedes the word including. By the use of the word including in the subsection those payments
which fall under paragraph (f) are, for the purposes of the Ordinance, in effect deemed to be outgoings and
expenses wholly and exclusively incurred in the production of the income. They will therefore fall outside of
the category in paragraph (b) of s 14, that is to say, they will not be considered as expenses not being
money wholly and exclusively laid out or expended for the purpose of acquiring the income. A fortiori they
will not be considered as being within the category in paragraph (a) of s 14, that is to say, they will not be
considered domestic or private expenses. The other categories of prohibited deductions are contained in
paragraphs (c) and (d) of s 14. Paragraph (c) has already been set out above and paragraph (d) prohibits
the deduction of any capital employed in improvements. But I can see no repugnancy between the
provisions of s 12 (1) (f) and those of s 14 (c). The position appears to me to be that if an expenditure
represents a loss or outgoing of capital it cannot be deducted even though it is an annual payment made by
virtue of a deed, but if the expenditure is a revenue expenditure and is an annual payment made by virtue of
a deed it is deductible, even though not wholly and exclusively incurred in the production of the income
within the meaning of that expression as it appears in sub-s (1) preceding the word including.
The deductions sought to be made by the appellants are of sums which are outgoings or expenditure of
capital and are as such in my view prohibited deductions under the Ordinance.
It is to be observed that the contention of counsel for the appellants on this point, if well founded, would
have the result that a taxpayer may by a deed making provision for annual payments deduct the amount of
his expenses for his groceries or clothing. A deduction of this kind, however, is prohibited by s 14 (a) of the
Ordinance.
As to the further contention on behalf of the appellant that the payments made were annual payments
within the contemplation of s 12 (1) (f) of the Ordinance, it is necessary to have regard to the substance of
the matter as disclosed by the terms of the document itself (per Lord Normand in Inland Revenue v Hogarth
([1941] SC 1, 23 Tax Cas 491, 2nd Digest Supp) (23 Tax Cas at p 498)).
Having examined the terms of the deed it seems clear that the sums payable by the appellants for the
purchase of Mr Healds share in the partnership and the capital effects and goodwill thereof are capital sums
stipulated as the total price therefor and payable by way of instalments towards the complete payment of
that debt and are none the less so because payment is to be made by instalments at the end of certain
specified years and not instalments of a fixed price.

271
In my view this is not the case of a series of annual payments as contemplated by s 12 (1) (f) of the
Ordinance.
Counsel for the appellants cited the Trinidad case of In re Joseph Galvan Kelshall ((1940), (Trinidad and
Tobago) decided by Gilchrist J, in 1940 and the Barbados case of In re Patrick Duffield McDermott ((1956),
(Barbados) decided by Collymore CJ, in 1956. The relevant Trinidad and Barbados provisions under which
those cases were decided are similar to those of s 12 (1) (f) of the Ordinance. Copies of the judgments in
those cases were laid over by counsel for the appellants during the course of his argument. In Kelshalls
case (In re Joseph Galvan Kelshall (1940), (Trinidad and Tobago)) a deed of covenant had been executed

under which the covenantor undertook to pay annual sums of money to trustees named in the deed for the
purpose of educating his children. Those sums were paid out of the covenantors income and were income
in the hands of the trustees. Gilchrist J, held that they were alienations of income and further that they were
deductible under the relevant Trinidad provisions in ascertaining the chargeable income of the covenantor. It
was not held in that case that the annual sums were payments in respect of a capital transaction and
consequently no reference was made by Gilchrist J, in his judgment to the provisions of the Trinidad
Ordinance prohibiting deductions of such a kind being made on a computation of a taxpayers assessable
income.
In McDermotts case (In re Patrick Duffield McDermott (1956), (Barbados)), a deed of covenant had
been executed under which the covenantor undertook to pay annual sums of money to his mother-in-law
during a period of five years or during their joint lives (whichever was the shorter).
Collymore CJ did not agree with the view expressed by Gilchrist J, in Kelshalls case (In re Joseph Galvan
Kelshall (1940), (Trinidad and Tobago)) that payments of that kind were alienations of the covenantors
income. He found, however, that the annual payments were made by virtue of a deed under s 18 of the
Income Tax Act, 1921-1926 [B], and were not voluntary payments and were therefore deductible in
calculating the covenantors assessable income. It is also to be observed that in McDermotts (1956),
(Barbados)) no question arose as to the annual payments being payments in respect of a capital
transaction.
In neither case was there any doubt that the payments were truly annual payments under the relevant
provisions.
The appeals are dismissed with costs fixed at $360to be paid by the appellants in equal proportions.
The additional assessments are affirmed.
Appeals dismissed.

272
(1959) 1 WIR 273

R v Claudius Smikle
SUPREME COURT OF JAMAICACOURT OF APPEAL
MACGREGOR C J, SEMPER AND DUFFUS JJ
11 MAY, 23 JUNE 1959

Criminal Law Posscssion of ganja Sentence Dangerous Drugs Law, Cap 90 [J], s 22.
The provisions of s 22 (2) of the Dangerous Drugs Law, Cap 90 [J], make it mandatory for the Resident
Magistrate to impose a sentence of imprisonment (with or without the addition of a fine) for the offences of:
(i) cultivating ganja; or
(ii) being in possession of ganja; or
(iii) selling or otherwise dealing in ganja.
Held: Section 67 of the Justices of the Peace Jurisdiction Law, Cap 188 [J], which gives a court of summary
jurisdiction power to impose a fine instead of imprisonment in certain circumstances, does not apply to
offences under s 22 of the Dangerous Drugs Law [J].
Per Curiam: It would be quite wrong for a Resident Magistrate to impose a nominal sentence of
imprisonment, say one day, and in addition, a fine.
Appeal dismissed.
No cases referred to.
Appeal
Appeal from conviction and sentence by the Resident Magistrate, St Mary.

Parkinson for the appellant

Brandon for the Crown
MACGREGOR CJ read the reasons for the judgment of the court: The appellant was convicted by the
Resident Magistrate, St Mary, of being in possession of ganja and was sentenced to 6 months hard labour.
He appealed, and two grounds only were argued before us, firstly that the conviction was unreasonable in
view of the improbabilities of the case presented by the Crown, and secondly that it was a proper case for
the court to have inflicted a fine.
As to the first ground of appeal, it was a question of fact for the consideration of the learned Resident
Magistrate and the court was not prepared to reverse his finding. The appeal against conviction therefore
failed.
The court was further of opinion that the sentence was a proper one but promised to put its reasons for
this opinion in writing, which we now proceed to do.
The section of the Dangerous Drugs Law, Cap 90 [J], which imposes the penalty for the offence of
possessing ganja is s 22 (2), hereafter referred to as s 22 The relevant portions are:
(2) (a) Save as is expressly provided in paragraph (b) of this subsection, every person who is guilty
of an offence against this Law shall be liable on summary conviction before a Resident Magistrate to a
fine not exceeding one hundred pounds, or to imprisonment with hard labour for a term not exceeding
twelve months, or to both such fine and imprisonment, and in the case of a second or subsequent
conviction to a fine not exceeding two hundred and fifty pounds, or to imprisonment with hard labour
for a term not exceeding two hundred and fifty pounds, or to imprisonment with hard labour for a term
not exceeding two years, or to both such fine and imprisonment.
(b) Notwithstanding anything in paragraph (a) of this subsection, every person who is guilty of the
offence of
(i) cultivating ganja; or
(ii) being in possession of ganja; or
(iii) selling or otherwise dealing in ganja,
shall, on summary conviction before a Resident Magistrate for any such offence, be imprisoned
with hard labour for a term not exceeding twelve 273 months, and in addition to such imprisonment
shall further be liable to a fine not exceeding one hundred pounds:
Provided that, in the case of a second or subsequent conviction for any such offence, the offender
shall be imprisoned with hard labour for a term not exceeding two years, and in addition to such
imprisonment shall further be liable to a fine not exceeding two hundred and fifty pounds.
It will therefore be seen that while subsection (2) (a) permits the infliction of a fine for offences not
mentioned in subsection (2) (b), that latter subsection for the three types of offences mentioned therein,
including the possession of ganja, is an absolute provision for a sentence of a term of imprisonment with or
without the addition to such imprisonment of a fine.
It is necessary to consider the previous legislation. Section 28 (2) of the Dangerous Drugs Law, Cap
78, of the 1938 Edition of the Revised Laws of Jamaica, provided:
(2) Any person guilty of an offence against this Law shall be liable on summary conviction before a
Resident Magistrate to a fine not exceeding one hundred pounds or to imprisonment with or without
hard labour for a term not exceeding six months or to both such fine and imprisonment, and in the
case of a second or subsequent conviction to a fine not exceeding two hundred and fifty pounds, or to
imprisonment with or without hard labour for a term not exceeding two years, or to both such fine and
imprisonment, and the Court dealing with the case may, in addition to any other punishment, order the
goods in respect of which the offence was committed to be forfeited.
It will be seen that these provisions as to penalties gave the court power to impose a fine for the
commission of the offences created by this Law.
Section 4 of the Dangerous Drugs (Amendment) Law, 1941 [J], (Law 24 of 1941) repealed s 28 (2) of
Cap 78 and substituted therefor a section which, except for two minor differences (referred to below) is the
same as s 22.
Chapter 78 as amended was repealed and replaced by the Dangerous Drugs Law, 1942 [J] (Law 22 of
1942). The penalty section of that Law was s 22 and it was in the same terms as s 28 (2) of Cap 78 as
amended by s 4 of Law 24 of 1941, except for the omission of the words and brackets (in the discretion of
the Court) at two places, and is identical with s 22 Law 22 of 1942 is now Cap 90 of the 1953 Edition of the
Revised Laws.
We are of opinion that the clear intention of the Legislature when it amended s 28 (2) of Cap 78 by
enacting s 4 of Law 24 of 1941 was to alter the existing law by taking away from the court the discretion to

impose a fine for the offences of cultivating ganja, being in possession of ganja, and selling or otherwise
dealing in ganja.
It was argued that notwithstanding the provisions of s 22, s 67 of the Justices of the Peace Jurisdiction
Law, Cap 188 [J], hereafter referred to as s 67, gave the court the option to impose a fine. The section
provides:
67. Where a court of summary jurisdiction has authority under a law to impose imprisonment for
an offence punishable on summary conviction and has not authority to impose a fine for that offence
that Court, when adjudicating on such offence, may, notwithstanding if the Court think the justice of the
case will be better met by a fine than by imprisonment, impose a fine not exceeding twenty-five pounds
and not being of such an amount as will subject the offender under the provisions of Part v of this Law
in default of payment of the fine to any greater term of imprisonment than that to which he is liable
under the law authorising the said imprisonment.
Section 67 first was enacted in 1925 as s 6 of the Summary Jurisdiction Law, 1925 [J], Law 3 of 1925.
There has been a slight change in the wording since it was first enacted. It then read:

274
Where a Court of summary jurisdiction has authority under a law whether past or future to impose
a fine. . . .
The words whether past or future were omitted in the 1938 Revision. It seems clear that the omission
of these words makes no difference to the section.
But the question may well arise whether s 67 has any reference to offences which are tried by a
resident magistrate exercising his special statutory summary jurisdiction. As we have already stated, it is
now a section of the Justices of the Peace Jurisdiction Law which deals with that jurisdiction. A resident
magistrate can, and does, exercise jurisdiction of two justices in Petty Sessions, and therefore if exercising
that jurisdiction, this section would be material for his consideration. He does not exercise the special
statutory summary jurisdiction by virtue of anything contained in the Justices of the Peace Jurisdiction Law
and were it not for the definition of court of summary jurisdiction in the Interpretation Law, Cap 165 [J], it
would be plain that s 67 could have no reference to a resident magistrate exercising that special statutory
summary jurisdiction. That definition reads:
court of summary jurisdiction means
(a) any justice or justices of the peace to whom jurisdiction is given by any Law for the time being in
force, or any Resident Magistrate sitting either alone or with other justices in a Court of Petty Sessions;
(b) a Resident Magistrate exercising special statutory summary jurisdiction.
It is clear therefore that the provisions of s 67 do apply to offences tried by a resident magistrate
exercising his special statutory summary jurisdiction.
The very clear wording of s 22 and s 67, however, makes it plain that s 67 does not apply to offences
under s 22.
Section 67 is an enabling section giving the court power to impose a fine for an offence for which it has
not authority to impose a fine. Section 22 gives the court authority to impose a fine but subsection (b)
directs that for the offences set out therein a fine can only be imposed as additional punishment to a term of
imprisonment.
The actual words of the enactment make this clear beyond any doubt and to place any other
interpretation on it would result in the creation of an ambiguity, where none existed.
It can hardly be thought that the Legislature could have intended s 67 to be applied to offences under s
22 where the maximum of all fines permitted under that section is either one hundred pounds on a first
conviction or two hundred and fifty pounds on a second or subsequent conviction, whereas under s 67 the
maximum is limited to twenty-five pounds. To hold otherwise would result in the absurdity that the resident
magistrate would be limited to a fine of twenty-five pounds for offences clearly regarded by the Legislature
as more serious than those for which the maximum penalty was limited to fines of one hundred pounds and
two hundred and fifty pounds, respectively.
It is to the knowledge of one member of this court that this court has so decided times without number
since the passing of Law 24 of 1941.*
One other matter should be mentioned. It would be quite wrong for a 275 Resident Magistrate to
impose a nominal sentence of imprisonment, say one day, and in addition, a fine.
Appeal dismissed.

(1959) 1 WIR 276

Francois v Smith And Others (Ranjit Kumar Third Party)

CHAMBERS COURT OF THE SUPREME COURT OF TRINIDAD AND TOBAGO
BLAGDEN J
23, 24 MARCH, 9 APRIL 1959

Practice Third party procedure Third party order made by consent of plaintiff and defendants
Application by third party to discharge order and set aside third party notice Circumstances in which and
stage at which third party order should be made Requirements of third party notice RSC [T] O 16, rr 51,
52 (1), and 57 (1) and (3).
By RSC [T] O 16, r 51:
(1) Where in any action a defendant claims as against any person not already a party to the action (in this
Order called the third party):
(a) that he is entitled to contribution or indemnity, or
(b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the
action and substantially the same as some relief or remedy claimed by the plaintiff, or
(c) that any question or issue relating to or connected with the said subject-matter is substantially the same
as some question or issue arising between the plaintiff and the defendant and should properly be
determined not only as between the plaintiff and the defendant but as between the plaintiff and the
defendant and the third party or between any or either of them
the Court or Judge may give leave to the defendant to issue and serve a third party notice.
(2) The Court or Judge may give leave to issue and serve a third party notice on an ex parte application
supported by affidavit, or, where the Court or Judge directs a summons to the plaintiff to be issued, upon the
hearing of the summons.
By RSC [T] O 16, r 52 (1):
The notice shall state the nature and grounds of the claim or the nature of the question or issue sought to
be determined and the nature and extent of any relief or remedy claimed. It shall be in accordance with the
Form No 1 or Form No 1A in Appendix B, with such variations as circumstances may require and shall be
sealed and served on the third party in the same manner as a writ of summons is sealed and served.
RSC [T] O 16, r 57, deals with third party directions and the relevant portions read as follows:
(1) If the third party enters an appearance, the defendant giving notice may, after serving notice of the
intended application upon the plaintiff, the 276 third party and any other defendant, apply to the Court or
Judge for directions. . . .
(3) The third party proceedings may at any time be set aside by the Court or Judge.
The plaintiff commenced an action on 13 February 1958, by generally indorsed writ against the first
defendant and her two minor daughters, claiming, inter alia, a declaration of ownership, and possession of a
chattel house. On 6 November 1958, before any pleadings had been filed, as a result of an application by
the defendants, a third party order was made, with the consent of the plaintiff, authorising the defendants to
issue and serve a third party notice upon R K as liquidator of the firm UB Co Ltd, pursuant to RSC [T] O
16, r 51 (1).
The third party notice was duly issued and served but it was by its terms directed to R K, simply, without
reference to his capacity as liquidator of the firm of UB Co Ltd.

R K entered an appearance on 28 November 1958, and on 19 January 1959, made application for the
discharge of the third party order and the setting aside of the third party notice on the grounds that
defendants had failed to issue a summons for third party directions under the order; that the third party
notice was issued against him in his personal capacity and not as liquidator of UB Co Ltd; and that the third
party notice did not contain the necessary particulars required by RSC [T] O 16, r 52 (1).
Held: (i) Although no summons for third party directions had been taken out on behalf of the defendants, the
delay in so doing did not by itself merit the discharge of the third party order.
(ii) The third party notice was bad in that it was issued to and served upon RK in his personal capacity and
not in his capacity as liquidator of the UB Co Ltd, as ordered in the third party order. The notice must
accordingly be set aside.
(iii) The fact that the third party order was made by consent did not affect R Ks application to have it
discharged since he was not himself a consenting party to it.
(iv) On the facts, the case could not be brought under the provisions of clauses (a) or (b) of RSC [T] O 16, r
51 (1); and that as regards the application of clause (c) it was necessary for the defendants to show that, as
between them and the third party, there was some question or issue relating to the subject-matter of the
action which was substantially the same as some question or issue arising between them and the plaintiff.
(v) In the absence of any defence it was impossible to say what was in issue between the plaintiff and the
defendants: the application of defendants for a third party order was in these circumstances premature and
misconceived and the order must be discharged.
Application dismissed without costs.
Cases referred to
Re Burford, Burford v Clifford [1932] 2 Ch 122, 101 L J Ch 321, 147 L T 185, 76 Sol Jo 377, CA, Digest
Supp
Re Gilson, Gilson v Gilson [1894] 2 Ch 92, 63 L J Ch 555, 70 LT 728, 42 WR 425, 38 Sol Jo 307, 8 R 382,
43 Digest 1015, 4555
Application
Application by third party by summons to discharge third party order and set aside third party notice. The
facts and arguments are set out in the judgment.
T Hosein (instructed by J B Wilson) for the applicant
Llewellyn Roberts (solicitor) (instructed by Llewellyn Roberts) for the defendants Plaintiff did not appear and
was not represented.

277
BLAGDEN J. This is a summons to have a third party order discharged and a third party notice set aside.
By Writ of Summons No 109 of 1958, dated 13 February 1958, the plaintiff Matilda Francois claimed, inter
alia, as against the first defendant and her two daughters, the second and third defendants, possession of a
chattel house standing on Lot No 10 Champs Fleur, and a declaration of ownership. The third party order
was made by consent on 6 November 1958, on the application of the first defendant. It was in the following
terms:
That the defendants be at liberty to issue and serve a Third Party Notice upon Ranjit Kumar of No
78 Edward Street, Port of Spain, as Liquidator of the firm United Brokers Company Limited, pursuant
to the Rules of the Supreme Court of Trinidad and Tobago, Order XVI, Rule 51 (1) (2), together with a
copy of the Writ of Summons herein.
The third party notice was served on Mr Ranjit Kumar as third party on 18 November 1958. Counsel for
the applicant in support of this present summons submitted that the notice was bad in that it did not comply
with the provisions of Trinidad O 16, r 52 (1), which requires, inter alia, that the notice shall state the nature
of the question or issue sought to be determined and the nature and extent of any relief or remedy claimed.
The notice is drawn up in accordance with the prescribed Form No 1A in Appendix B. It adjures the third
party to

take notice that the defendants claim that the following issue namely, To whom does All And
Singular that certain Chattel House measuring 30 feet by 24 feet, built of hollow clay blocks comprising
4 rooms and an open gallery to the front, resting on concrete pillars and covered with galvanised iron
sheets, together with all the appurtenances used and enjoyed therewith erected and standing on Lot
No 10 Champs Fleurs, belong? should be determined, not only as between the plaintiff and the
defendants, but as between the plaintiff and the defendants and yourself.
It thus does state the nature of an issue to be determined, but it does not state the nature and extent of
any relief or remedy claimed. But from what solicitor for the defendants has said on behalf of the first
defendant, and his affidavit of 4 November 1958, it would appear that the first defendant claims no relief or
remedy against the third party but is anxious only that the issue as to the ownership of the chattel house
should be determined as between the plaintiff and the third party and that she and her daughters should be
relieved as far as possible of the responsibilities and costs of contesting any action. If this is a proper
situation for the initiation of third party proceedingsand as to this I shall have a great deal more to say
presentlythen no objection can be taken to the third party notice on the grounds that it omits to state any
relief, none in fact being claimed.
Counsel for the applicant also takes objection to the third party notice on the grounds that it is directed
to the third party in his personal capacity and not as ordered, in his capacity as liquidator of United Brokers
Company, Limited. In answer solicitor for the defendants raises two points: first, he says, as a copy of the
order accompanied the third party notice when it was served, the third party could have been in no doubt in
what capacity he was being brought in. I do not see however that the third partys knowing that the notice
was in error in this respect could be regarded as curing the error. The second point made by solicitor for the
defendants was that by making an unconditional appearance the third party must be taken to have waived
any misdescription in regard to his capacity. I would agree with this submission if Mr Ranjit Kumar had
entered an appearance in his capacity as liquidator of United Brokers Company, Limited, but as he has
entered an appearance in his personal capacity,

278
which was what the third party notice called on him to do, I cannot see that he can be regarded as
having waived anything. In my view the third party notice is bad for this reason, and, although it is not
necessary to decide this point in view of what I am about to say regarding the third party order, I do not think
the defect could be cured by amendment since Mr Ranjit Kumar has already put in an appearance in his
personal capacity.
Now with regard to the application to discharge the third party order itself: counsel for the applicant has
pointed out that under the provisions of O 16, r 57 (3), this can be done at any stage of the proceedings.
Counsel bases this part of his application on two grounds to which he has subsequently added a third. First,
he points out that the first defendant has not taken out a summons for third party directions. By O 16, r 57
(1), If the Third Party enters an appearance, the defendant . . . may . . . apply to . . . the Judge for
directions. . . . There is apparently nothing mandatory about this and no particular time is prescribed
within which it should be done. The equivalent English provision is RSC O 16A, r 7 (1), which is in the same
terms. The practice is indicated in the Notes that follow this provision in the 1958 Annual Practice at page
392 under the rubric PracticeApplication, and following, thus:
Unless a summons for directions has been issued in the action . . . he must issue a summons for
third party directions . . . which must be addressed to and served upon the third party as well as
upon the plaintiff, and also upon any co-defendant of the defendant giving the notice. It is for the
defendant to obtain directions, and not the third party. It is on this application, and not on that for leave
to serve, that the validity of the notice and the objections of the plaintiff will be gone into.
No applicationIf the defendant does not apply, the court at the trial will not entertain the claim
raised by the notice.
Time for ApplicationThe application should be made at a stage of proceedings when it is possible
there may still be a trial of the action between plaintiff and defendant. . . .
In the present case the first defendant has not taken out a summons for directions but I am not
prepared to say her delay in doing so is such as to merit the discharge of the third party order.
The second ground of counsel for the applicant for discharging the order is that in the light of all the
information now available this case is not one calling for third party procedure at all. The matter is governed
by O 16, r 51 (1) [T], which is in the following terms:

Where in any action a defendant claims as against any person not already a party to the action (in
this Order called the third party):
(a) that he is entitled to contribution or indemnity, or
(b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter
of the action and substantially the same as some relief or remedy claimed by the plaintiff, or
(c) that any question or issue relating to or connected with the said subject-matter is substantially
the same as some question or issue arising between the plaintiff and the defendant and should
properly be determined not only as between the plaintiff and the defendant but as between the plaintiff
and the defendant and the third party or between any or either of them,
the Court of Judge may give leave to the defendant to issue and serve a third party notice.
I have no hesitation in saying that this case cannot be brought under the provisions of clauses (a) or (b).
There remains clause (c). The equivalent

279
English provision is RSC O 16A, r 12 (1) (c). In the case of Re Burford, Burford v Clifford ([1932] 2 Ch
122, 101 L J Ch 321, 147 L T 185, 76 Sol Jo 377, CA, Digest Supp) Bennett J ([1932] 2 Ch at p 131) put it
this way:
. . . what one has to see is whether, as between the defendants serving the third party notice and
the defendants upon whom the third party notice is served there is a question or issue relating to the
subject-matter of the action which is substantially the same as some question or issue arising between
the plaintiffs and the defendants making the claim. . . .
Can it be truly said here that there is an issue between the defendants and the third party regarding the
ownership of this chattel house which is substantially the same as an issue between the defendants and the
plaintiff? To answer this question one must look to the pleadings and the third party notice to see what is in
issue; and the first thing one notices if one does that is the very circumstance which gives rise to the third
ground of counsel for the applicant for discharging the third party order: namely there are no pleadings and,
in particular, of course, there is no defence.
In the absence of a defence how can one say what is in issue between plaintiff and defendants? Re
Gilson, Gilson v Gilson ([1894] 2 Ch 92, 63 L J Ch 555, 70 LT 728, 42 WR 425, 38 Sol Jo 307, 8 R 382, 43
Digest 1015, 4555) is clear authority for the proposition that an application for leave to serve a third party
notice before delivery of defence is premature.
But in the present case there is another consideration: in para 6 of his affidavit solicitor for the
defendants states:
The defendant Ruth Smith lays no claim whatever to the ownership of the said premises and is at
all times ready and willing to abide by the decision of the Court as to the Owner thereof.
What then is the issue or question between the defendants and plaintiff, or for that matter between the
defendants and the third party? The answer would appear to be, none. In my view these third party
proceedings have been misconceived from the start. The fact that the third party order was made by
consent does not affect this summons since the third party was not himself a consenting party to the order.
The third party order must accordingly be discharged and the third party notice set aside with costs paid
by the defendants to the third party to be taxed in default of agreement.
Application dismissed.

280
(1959) 1 WIR 281

James v Venezuela
FULL COURT OF THE SUPREME COURT OF TRINIDAD AND TOBAGO
GOMES C J AND PHILLIPS J
7, 20 JANUARY 1959

Landlord and tenant Monthly tenant Payment of rent in advance for one year Whether a term of the
original tenancy agreement Sale of premises during the year Purchaser with no actual notice of such

payment Constructive notice Recovery by purchaser of part of the rent paid in advance Conveyancing
and Law of Property Ordinance, Cap 27, No 12 [T], s 80 (1) (a).
Rent Restriction Payment in gross Requiring premium for grant of tenancy Rent Restriction Ordinance,
Cap 27, No 18 [T], s 13 (2).
The appellant became the monthly tenant of H in September 1954, paying one years rent in advance to H.
In November 1954, the respondent purchased the premises let to the appellant who was then in occupation
thereof. The respondent knew of the appellants occupation but not of the advance payment of rent by the
appellant to H. The respondent brought an action against the appellant in the Petty Civil Court to recover
the sum of $50.00 for five months rent from the month of December 1954, to 30 April 1955. The judge of
the Petty Civil Court awarded judgment to the respondent, holding on the authority of De Nicholls v
Saunders ((1870), LR 5 CP 589, 39 LJCP 297, 22 LT 661, 18 WR 1106, 31 Digest (Repl) 256, 3921) that the
payment of rent in advance by the appellant was not a good payment as against the respondent purchaser.
Held:(i) The payment made in advance in the circumstances of this case was not a payment in gross, but
part and parcel of the original terms of the tenancy agreement.
(ii) The respondent was bound by the original terms of the tenancy agreement and could not recover from
the appellant any part of the rent paid in advance to H Hunt v Luck ([1902] 1 ch 428, 71 LJ Ch 239, 86 LT
68, 50 WR 291, 18 TLR 265, 46 Sol Jo 229, CA, 20 Digest 330, 744) and Green v Rheinberg ((1911), 104
LT 149, CA, 35 Digest 332, 749) applied. De Nicholls v Saunders ((1870), LR 5 CP 589, 39 LJCP 297, 22
LT 661, 18 WR 1106, 31 Digest (Repl) 256, 3921) and Cook v Guerra ((1872), LR 7 CP 132, 41 LJCP 89, 26
LT 97, 20 WR 367, 35 Digest 332, 748) distinguished.
(iii) That the payment was not a premium within the meaning of s 13 (2) of the Rent Restriction Ordinance,
Cap 27, No 18 [T]. dictum of Danckwerts J, in Grace Rymer Investments, Ltd v Waite ([1958] 1 All ER 138)
([1958], 1 All ER at p 144) applied.
Appeal allowed.
Cases referred to
Nicholls v Saunders (1870), LR 5 CP 589, 39 LJCP 297, 22 LT 661, 18 WR 1106, 31 Digest (Repl) 256,
3921
Hunt v Luck [1902] 1 ch 428, 71 LJ Ch 239, 86 LT 68, 50 WR 291, 18 TLR 265, 46 Sol Jo 229, CA, 20
Digest 330, 744
Green v Rheinberg (1911), 104 LT 149, CA, 35 Digest 332, 749
Barnhart v Greenshields (1853), 9 Moo PCC 18, 2 Eq Rep 1217, 22 LTOS 178, 14 ER 204, PC, 20 Digest
301, 552
Taylor v Stibbert (1794), 2 Ves 437, 30 ER 713, 20 Digest 300, 551
Danicls v Davison (1809), 16 Ves 249, 33 ER 978, LC, subsequent proceedings (1811), 17 Ves 433, LC, 20
Digest 329, 732
Allen v Anthony (1816), 1 Mer 282, 35 ER 679, LC, 20 Digest 329, 734
Cook v Guerra (1872), LR 7 CP 132, 41 LJCP 89, 26 LT 97, 20 WR 367, 35 Digest 332, 748
Ashburton (Lord) v Nocton [1915] 1 Ch 274, 84 LJ Ch 193, 111 LT 895, 31 TLR 122, 59 Sol Jo 145, CA, 30
Digest (Repl) 189, 340
Grace Rymer Investments, Ltd v Waite [1958] 1 All ER 138
Appeal
Appeal against the decision of a judge of the Petty Civil Court, Port of Spain, 281dated 6 March 1957. The
facts are sufficiently set out in the judgment of the court.
H A Hutson (instructed by J B Wilson) for the appellant
T Hosein (instructed by Alvin K Fitzpatrick) for the respondent
Cur adv vult
GOMES CJ delivered the judgment of the court: In the month of September 1954, the appellant became a
tenant of one Hasanali in respect of certain premises at El Socorro Road. The rent was $10 per month and
the appellant on the 6th of that month paid one years rent in advance. In November 1954, the respondent

became the owner of the premises and on 11 August 1956, he instituted this action to recover from the
appellant the sum of $50 for five months rent of the premises from the month of December 1954, to 30 April
1955.
At the time of purchase the respondent knew that a tenant was in occupation but he did not know that
the tenant had paid the former landlord one years rent in advance.
The judge of the Petty Civil Court, on the authority of the case of De Nicholls v Saunders ((1870), LR 5
CP 589, 39 LJCP 297, 22 LT 661, 18 WR 1106, 31 Digest (Repl) 256, 3921), held that the payment in
advance was not a good payment as against the purchaser, and accordingly gave judgment for the
respondent.
At the hearing of this appeal counsel for the appellant submitted that the payment of the years rent in
advance was one of the terms of the tenancy and that the failure of the respondent to enquire what the
terms of the tenancy were, as it was his duty to do, precluded him from recovering any part of the rent so
paid.
Among other arguments submitted, counsel for the respondent conceded that, if the purchaser had
actual notice that a tenant was in occupation, he would be bound by the terms of the tenancy, but counsel
maintained that the advance payment of rent was not one of the terms of the tenancy but only a payment in
gross to be appropriated as and when the rent became due, and that, as the purchaser had no actual notice
of it, he was entitled to recover. In furtherance of his submission that the advance payment was not one of
the terms of the tenancy counsel argued that the appellant had stated that he had to pay the years advance
in order to obtain the premises, that the payment was a condition precedent and a personal matter between
the former landlord and tenant and was, therefore, a premium within the meaning of s 13 (2) of the Rent
Restriction Ordinance, Cap 27, No 18 [T].
In reply, it was submitted that the respondent had constructive notice of the appellants rights within the
meaning of s 80 (1) (a) of the Conveyancing and Law of Property Ordinance, Cap 27, No 12 [T], which
provides as follows:
80. (1) A purchaser shall not be prejudicially affected by notice of any instrument, fact, or thing
unless
(a) it is within his own knowledge, or would have come to his knowledge, if such enquiries and
inspections had been made as ought reasonably to have been made by him.
It is to be observed that that subsection is in identical terms with sub-s (1) (ii) (a) s 199 of the Law of
Property Act, 1925 [U K], which replaced sub-s (1) (i) of s 3 of the Conveyancing Act, 1881 [U K].
In support of his submission, counsel for the appellant relied on the cases of Hunt v Luck ([1902] 1 ch
428, 71 LJ Ch 239, 86 LT 68, 50 WR 291, 18 TLR 265, 46 Sol Jo 229, CA, 20 Digest 330, 744) and Green v
Rheinberg ((1911), 104 LT 149, CA, 35 Digest 332, 749).
In the former case Farwell J, said:
I take the law as stated in 1833 by Lord Kingsdown (then Pemberton Leigh J) in Barnhart v
Greenshields ((1853), 9 Moo PCC 18, 2 Eq Rep 1217, 22 LTOS 178, 14 ER 204, PC, 20 Digest 301,
552) (9 Moo PC at p 32): With respect to the effect of possession merely, we take the law to be, that if
there 282 be a tenant in possession of land, a purchaser is bound by all the equities which the tenant
could enforce against the vendor, and that the equity of the tenant extends not only to interests
connected with his tenancy as in Taylor v Stibbert ((1794), 2 Ves 437, 30 ER 713, 20 Digest 300, 551),
but also to interests under collateral agreements, as in Daniels v Davison ((1809), 16 Ves 249, 33 ER
978, LC, subsequent proceedings (1811), 17 Ves 433, LC, 20 Digest 329, 732) and Allen v Anthony
((1816), 1 Mer 282, 35 ER 679, LC, 20 Digest 329, 734), the principle being the same in both cases;
namely, that the possession of the tenant is notice that he has some interest in the land, and that a
purchaser having notice of that fact, is bound, according to the ordinary rule, either to inquire what that
interest is, or to give effect to it whatever it may be....
And in the same case, in the Court of Appeal, Vaughan Williams LJ ([1902] 1 Ch at pp 432-433) said:
We have therefore, to apply the first of the rules stated by the learned judge. Now, what does that
mean? It means that, if a purchaser or a mortgagee has notice that the vendor or mortgagor is not in
possession of the property, he must make inquiries of the person in possessionof the tenant who is in
possessionand find out from him what his rights are, and, if he does not choose to do that, then
whatever title he acquires as purchaser or mortgagee will be subject to the title or right of the tenant in
possession.
In Greens v Rheinberg case ((1911), 104 LT 149, CA, 35 Digest 332, 749) the facts were as follows: By
a lease in writing a house was demised to the defendant for a term of four years at a yearly rent payable

quarterly; and the defendant entered under the lease. Soon after the commencement of the term the lessor
agreed to accept, and the defendant paid a lump sum in satisfaction of all rent reserved by the lease during
the term. The lessor then mortgaged the premises to the plaintiff. The plaintiff knew nothing of the payment
of rent in advance by the defendant, and had only seen the counterpart lease; but she had made no inquiry
of the defendant before the mortgage was completed.
On those facts it was held (affirming the judgment of the Kings Bench Division), that the plaintiff was
bound by the arrangement made between the defendant and the lessor, and could not recover from the
defendant any part of the rent reserved by the lease.
We have reproduced these extracts, rather than condense their purport, for they set out the principles
which counsel for the appellant submits are applicable to this case.
The main authorities relied on by counsel for the respondent are De Nicholls v Saunders ((1870), LR 5
CP 589, 39 LJCP 297, 22 LT 661, 18 WR 1106, 31 Digest (Repl) 256, 3921.) and Cook v Guerra ((1872), LR
7 CP 132, 41 LJCP 89, 26 LT 97, 20 WR 367, 35 Digest 332, 748).
It is to be noted that De Nicholls v Saunders ((1870), LR 5 CP 589, 39 LJCP 297, 22 LT 661, 18 WR
1106, 31 Digest (Repl) 256, 3921) was a case where it was held that a prepayment of rent to the lessor
before the rent day did not discharge the lessee, because, before the rent day he had had notice of the
mortgage and had received a demand for payment of rent to the mortgagee. That case was followed in
Cook v Guerra ((1872), LR 7 CP 132, 41 LJCP 89, 26 LT 97, 20 WR 367, 35 Digest 332, 748).
We do not consider that those cases, in the light of the facts in the case under appeal and the decisions
in Hunts v Luck case ([1902] 1 ch 428, 71 LJ Ch 239, 86 LT 68, 50 WR 291, 18 TLR 265, 46 Sol Jo 229,
CA, 20 Digest 330, 744) and Greens v Rheinberg case ((1911), 104 LT 149, CA, 35 Digest 332, 749), are
applicable, for two reasons. The first is that in this case prepayment was made before any alienation of the
property, whereas in these cases prepayment was made after the alienation, ie after the charge became
effective. In this connection it is interesting to observe that in the much later case of Ashburton (Lord) v
Nocton ([1915] 1 Ch 274, 84 LJ Ch 193, 111 LT 895, 31 TLR 122, 59 Sol Jo 145, CA, 30 Digest (Repl) 189,
340) (a case cited by counsel for the respondent) it was conceded by counsel for the appellant (whose
language we adopt and who was successful on appeal) that Greens v Rheinberg case ((1911), 104 LT 149,
CA, 35 Digest 332, 749) was a binding decision on the court that a payment made before the charge was
obtained was effectual against the mortgagee. The second reason is that we consider that the payment in
this case was not a payment in gross, as contended, but that it was part and parcel of the original 283 terms
of the tenancy agreement and on the same footing as, or analogous to, the payment made in consideration
of the release of the rent in Greens v Rheinberg case ((1911), 104 LT 149, CA, 35 Digest 332, 749).
With respect to counsels submission that the payment was a premium, we have examined the
authorities cited and we are of opinion that the payment in this case was not a premium within the meaning
of s 13 (2) of the Rent Restriction Ordinance [T].
In the case of Grace Rymer Investments, Ltd v Waite ([1958] 1 All ER 138) Danckwerts J ([1958] 1 All
ER at p 144) said:
I think that it cannot in every case be requiring a premium or unlawful to require payment of rent in
advance. After all, it is well known that rents are often required to be paid in advance where the
circumstances suggest that the tenant is not a very stable character. It may well be, however, that the
demand of several years rent in advance cannot be justified on any such ground. At what point is the
line to be drawn? I apprehend that one test may be that if the demand is obviously a device to get
over some provision of the law, and not merely a bona fide attempt to prevent the landlord being
deprived of the ability to recover his rent, the transaction may be scrutinised and be shown to be
something other than what it is called.
We consider that this test may very properly be applied to this case. While it is true that the appellant
said in evidence I had to pay one years rent in advance to get the premises those words are quivocal and
cannot by themselves, as a matter of law, have the effect of converting the payment into a premium.
There is no circumstance which indicates that the requirement for the advance payment was in any way
a demand for payment of anything in addition to what would become due for rent over the first twelve
months. It was quite a normal and usual request and we can find no reason for concluding that it savoured
in any way of a device to circumvent the relevant provisions of the Ordinance. Indeed, there is a factor that
negatives or tends to detract from any such suggestion. It is that the appellant was a policeman. While he
undoubtedly may be a person of stable character, the probability if that he might not have been regarded as
a stable tenant, as it is a notorious fact that policemen are liable to be constantly transferred from one district
to another, sometimes with little or no notice.
Counsel for the respondent also argued that a purchaser and mortgagee do not necessarily stand in the
same situation but we find no merit in that argument and, in fact, it is not in consonance with the authorities.

He also made a point (rather belatedly) that there was no evidence that the premises in question are
land within the meaning of the definition of that term in the Conveyancing and Law of Property Ordinance
and that therefore s 80 of the Ordinance does not apply.
We cannot see how it lies in the mouth of the respondent to make that objection at this stage of the
proceedings. The respondent is the plaintiff in the action. His claim was for arrears of rent, yet no
description was given in the particulars in the summons of the premises in respect of which rent was
claimed. The appellant, however, at the earliest stage, that is to say, in his affidavit in support of his
application for leave to defend, stated what his defence would be. The respondent therefore knew or ought
to have known that the question whether he would be affected by the provisions quoted above in regard to
notice would almost certainly arise, as indeed it did arise when the respondent was cross-examined. We
therefore consider that the onus was on the respondent at the hearing (as indeed it was at the time he filed
his claim) to state the precise nature of the premises in question. While it is true that in his evidence the
respondent did speak of the house, he also spoke of the premises, and

284
it is clear that the former expression was used only in answer to a question in cross-examination.
We do not think it necessary to deal with some other subsidiary matters raised by counsel for the
respondent.
For these reasons the appeal is allowed with costs to be taxed and the judgment of the judge of the
Petty Civil Court is set aside.
Appeal allowed.

(1959) 1 WIR 285

R v Hilton Daken
COURT OF CRIMINAL APPEAL OF TRINIDAD AND TOBAGO
GOMES C J, BLAGDEN AND CORBIN JJ
18 FEBRUARY 1959

Criminal Law Receiving Summing-up Doctrine of Recent Possession Explanation by accused of

possession.
The appellant was charged on an indictment containing the two alternative counts of shop-breaking and
larceny, and receiving.
The case against the appellant rested substantially on evidence that he was found in possession of the
stolen articles, the subject-matter of the charges, within a few hours of their being stolen. In the course of
his summing-up the trial judge directed the jury on the principles governing the doctrine of recent possession
and told them that if the accused gave them an explanation which left them in doubt as to whether he had
received the stolen articles honestly or dishonestly the prosecution had not proved the case of receiving and
it would be their duty in those circumstances to acquit him on the count of receiving.
The appellant was convicted on the receiving count and appealed on the ground, inter alia, that the trial
judge had failed to direct the jury adequately on the principles governing the doctrine of recent possession.
Held: Although in the circumstances of this particular case it might have been better for the trial judge to
have told the jury that, if they considered that the explanation of the accused might reasonably be true, then
they should acquit the prisoner, that was quite another thing to saying that the direction given by the judge
was wrong or misled the jury. As was stated in R v Hepworth R v Fearnley ([1955] 2 All ER 918; 119 JP 516,
99 Sol Jo 544, 39 Cr App rep 152, CCA, 14 Digest (Repl) 494, 4772), it was not necessary to use on all
occasions the formula which was used in the case of R v Schama, R v Abramovitch ((1914), 84 LJKB 396,
112 LT 480, 79 JP 184, 31 TLR 88, 59 Sol Jo 288, 24 cos, CC 591, 11 Cr App Rep 45, CCA, 14 Digest
(Repl) 494, 4770).
Dictum of Goddard LCJ, in R v Hepworth, R v Fearnley ([1955] 2 All ER 918; 119 JP 516, 99 Sol Jo 544, 39
Cr App rep 152, CCA, 14 Digest (Repl) 494, 4772) (39 Cr App Rep at p 154) applied.
Appeal dismissed.

Editorial Note. In the course of argument in this case the court was referred to the case of R v Garth
([1949] 1 All ER 773), which was a case of receiving and in which the trial judge in his summing-up directed
the jury that if the accused gave an explanation of his possession of the stolen goods which, although you
do not think it to be true, you think might possibly be true, then he is entitled to be acquitted. It was held that
this direction was unduly favourable to the accused as any explanation might possibly be true. Goddard
LCJ, concluded the judgment of the court with the following words (at p 774): A proper direction to the jury
would be: If the prisoners account 285 raises a doubt in your minds, then of course you ought not to say
the case has been proved to your satisfaction. If that simple fact were borne in mind, a good deal of the
confusion which often arises by an attempt to lay down the law in accordance with R v chama, R v
Abramovitchs case (R v Schama, R v Abramovitch (1914), 84 LJKB 396, 112 LT 480, 79 JP 184, 31 TLR
88, 59 Sol Jo 288, 24 cos, CC 591, 11 Cr App Rep 45, CCA, 14 Digest (Repl) 494, 4770) will be avoided.
The subsequent judgments of the Court of Criminal Appeal in R v Summers (36 Cr App Rep 14) and R v
Hepworth, R v Fearnley ([1955] 2 All ER 918; 119 JP 516, 99 Sol Jo 544, 39 Cr App rep 152, CCA, 14
Digest (Repl) 494, 4772) indicate that the use of the phrase reasonable doubt is better avoided.
Cases referred to
R v Schama, R v Abramovitch (1914), 84 LJKB 396, 112 LT 480, 79 JP 184, 31 TLR 88, 59 Sol Jo 288, 24
cos, CC 591, 11 Cr App Rep 45, CCA, 14 Digest (Repl) 494, 4770
R v Hepworth, R v Fearnley [1955] 2 All ER 918; 119 JP 516, 99 Sol Jo 544, 39 Cr App rep 152, CCA, 14
Digest (Repl) 494, 4772
Appeal
Appeal by Hilton Daken against conviction for receiving stolen property before De La Bastide J, and a jury at
the Criminal Sessions, Port of Spain. The facts of the case are sufficiently set out in the head-note.
Winston Gaspard (instructed by Crown Solicitor) for the appellant
Rienze (Acting Director of Public Prosecutions) for the Crown
GOMES CJ delivered the judgment of the court: This is an appeal against a conviction for receiving stolen
property. Two grounds of appeal were argued: first, that the trial judge misdirected the jury in respect of the
onus of proof, and second, that he failed to direct them adequately on the principles governing the doctrine
of recent possession.
With respect to the first ground, we consider that there was no misdirection and that the direction given
with regard to the onus of proof was adequate. The trial judge not only gave a direction with regard to the
onus of proof in a criminal case generally but on p 8 of his summing-up he also gave special directions in the
following terms:
My direction on the law with regard to guilty knowledge on the count of receiving is as follows: The
possession of an article recently stolen calls for an explanation from the person in whose possession it
has been found. If no explanation is given or an explanation is given to you which you are convinced
is untrue, that would entitle you to find the person in possession of such stolen article or articles guilty
on the count of receiving. But, Gentlemen, if the accused gives you an explanation which leaves you
in doubt as to whether that accused received the stolen article or articles honestly or dishonestly, the
prosecution have not proved the case of receiving and it will, in those circumstances, naturally, be your
duty to acquit the accused on the count of receiving.
With respect to the second ground of appeal, the whole argument of counsel comes down to this: that
the trial judge did not, in dealing with the question whether an explanation is given, direct the jury that, even
though they might not be convinced of the truth of the explanation, yet if they thought it might be true, their
duty was to acquit. In support of this submission, counsel relied on the cases of R v Schama R v
Abramovitch ((1914), 84 LJKB 396, 112 LT 480, 79 JP 184, 31 TLR 88, 59 Sol Jo 288, 24 cos, CC 591, 11
Cr App Rep 45, CCA, 14 Digest (Repl) 494, 4770) and R v Hepworth, R v Fearnley ([1955] 2 All ER 918; 119
JP 516, 99 Sol Jo 544, 39 Cr App rep 152, CCA, 14 Digest (Repl) 494, 4772). Of these two authorities, it is
necessary to refer to the latter only.
The particular passage relied on by counsel was as follows:
In a receiving case it is generally desirable, although there may be circumstances in the particular
case which would not render it necessary, first, to remind the jury that the burden of proof remains on
the prosecution and, secondly, to tell them that if an explanation for possession of the goods is given
by the prisoner and although the jury may not be convinced that it is 286 true, if they think it may be
true, it would mean that the prosecution have not proved the case because the jury would remain in

some degree of doubt. It is not necessary to use on all occasions the formula which was used in
Abramovitchs case (R v Schama, R v Abramovitch (1914), 84 LJKB 396, 112 LT 480, 79 JP 184, 31
TLR 88, 59 Sol Jo 288, 24 cos, CC 591, 11 Cr App Rep 45, CCA, 14 Digest (Repl) 494, 4770) because
that case, which is constantly cited in cases relating to receiving, as I have said more than once in
giving judgment in appeals, lays down no more than this: if the explanation given by the prisoner,
which when he has given it, becomes part of the sum of evidence in the case, leaves the jury in doubt
whether he honestly or dishonestly received the goods, the prisoner is entitled to be acquitted because
the case has not been proved. A case is never proved if the jury is left in any degree of doubt.
If that passage is compared with the portion of the summing-up quoted above, it will be found that the
only real difference is that, instead of saying with respect to the explanation although the jury may not be
convinced that it is true, if they think it may be true, the trial judge said if it leaves you in doubt.
We consider that in the circumstances of this particular case it might have been better for the trial judge
to have told the jury that, if they considered that the explanation might reasonably be true, then they should
acquit the prisoner; but that is quite another thing to saying that the direction given by the judge is wrong or
misled the jury. As stated in the judgment in Hepworths, R v Fearnley case ([1955] 2 All ER 918; 119 JP
516, 99 Sol Jo 544, 39 Cr App rep 152, CCA, 14 Digest (Repl) 494, 4772), it is not necessary to use on all
occasions the formula which was used in the case of R v Schama, R v Abramovitch ((1914), 84 LJKB 396,
112 LT 480, 79 JP 184, 31 TLR 88, 59 Sol Jo 288, 24 cos, CC 591, 11 Cr App Rep 45, CCA, 14 Digest
(Repl) 494, 4770) and, indeed, the latter part of the trial judges direction follows closely the words in the
concluding portion of the passage quoted from Hepworths, R v Fearnley case ([1955] 2 All ER 918; 119 JP
516, 99 Sol Jo 544, 39 Cr App rep 152, CCA, 14 Digest (Repl) 494, 4772). For these reasons it cannot be
stated that the direction of the trial judge was wrong or inadequate or misled the jury.
For these reasons the appeal is dismissed.
Appeal dismissed.

(1959) 1 WIR 287

Rodriguez v Rodriguez
FULL COURT OF THE SUPREME COURT OF TRINIDAD AND TOBAGO
GOMES C J AND BLAGDEN J
7, 8, 22 APRIL 1959

Criminal Law Malicious damage to wifes property by husband Malicious Damage Ordinance, Cap 4, No
13 [T], s 48.
Husband and wife Remedies of wife for protection of her own property Criminal proceedings by wife
living apart from husband against husband for malicious damage to her property whilst living together
Criminal proceedings not maintainable except in regard to property wrongfully taken by husband Married
Womens Property Ordinance, Cap 27, No 13 [T], s 15 (3) Larceny Ordinance, Cap 4, No 11 [T], s 37 (1).
Section 15 of the Married Womens Property Ordinance, Cap 27, No 13 [T], deals with the remedies of
married women for the protection and security of their property. Its provisions are subject to a proviso in
sub-s (3) which is in the following terms:
Provided always, that no criminal proceeding shall be taken by any wife against her husband by
virtue of this Ordinance while they are living together, as to or concerning any property claimed by her,
nor while they are living 287 apart, as to or concerning any act done by the husband while they were
living together, concerning property claimed by the wife, unless such property shall have been
wrongfully taken by the husband when leaving or deserting, or about to leave or desert, his wife.

The appellant, a married woman, instituted criminal proceedings against her husband in the form of a
complaint in the Magistrates Court, Port of Spain, for unlawfully and maliciously damaging her sewing
machine contrary to s 48 of the Malicious Damage Ordinance, Cap 4, No 13 [T]. At the time the machine
was damaged the parties were living together but they were no longer living together when the wife
instituted her complaint. The trial magistrate dismissed the complaint on the ground that the effect of the
proviso in s 15 (3) of the Married Womens Property Ordinance, Cap 27, No 13 [T], was to debar the wife

from taking criminal proceedings against the husband, regarding any property claimed by her, in respect of
any act done by him while they were living together. The wife appealed.
Held:(i) In applying the provisions of s 15 (3) of the Married Womens Property Ordinance, Cap 27 No 13
[T], the first consideration was to see whether the parties were living together at the time the criminal
proceedings were initiated. It was not in dispute that they were not so living together, so that up to this point
it was open to the wife to take criminal proceedings.
(ii) The second consideration was to see whether the criminal proceedings related to any act done by the
husband while they were living together. The commission of the act was denied by the husband but it was
not disputed that at the time it was allegedly committed the parties were living together.
(iii) Finally, to succeed in her complaint, the wife had to show that the sewing machine had been wrongfully
taken by the husband when leaving or deserting, or about to leave or desert his wife.
(iv) The words wrongfully taken relate only to cases of larceny and kindred offences, and do not include
acts of damage or destruction such as the act complained of here. The wifes complaint was accordingly
rightly dismissed.
Appeal dismissed.
No cases referred to.
Appeal
Appeal by Babsie Rodriguez against the dismissal by an acting magistrate of the Port of Spain Magistrates
Sixth Court of a complaint brought against Ivan Rodriguez of unlawfully and maliciously damaging property.
The facts and argument appear in the judgment.
Bruce Procope for the appellant
Carlton Achong for the respondent
GOMES CJ delivered the judgment of the court: In this case the appellant, a married woman, instituted a
complaint against her husband for unlawfully and maliciously damaging her Singer sewing machine,
contrary to s 48 of the Malicious Damage Ordinance, Cap 4, No 13 [T] the magistrate dismissed the
complaint on the ground that at the time of the alleged offence she was living with her husband and,
therefore, by virtue of s 15 (3) of the Married Womens Property Ordinance, Cap 27, No 13 [T], she could not
maintain criminal proceedings of that nature against him with respect to any property claimed by her. That,
or course, is not an accurate assessment of the effect of the subsection, but it is unnecessary to examine
the magistrates reasoning in detail as the determination of this appeal turns upon a somewhat different,
though related, question with respect to the construction that is to be placed on this subsection.
Section 15 of the Married Womens Property Ordinance deals with the remedies of married women of
the protection and security of their property 288 and sub-s (3) of that section introduces a proviso which is in
the following terms:
Provided always, that no criminal proceeding shall be taken by any wife against her husband by
virtue of this Ordinance while they are living together, as to or concerning any property claimed by her,
nor while they are living apart, as to or concerning any act done by the husband while they were living
together, concerning property claimed by the wife, unless. . .
It will be apparent from the foregoing that the first consideration is whether or not the parties were living
together at the time criminal proceedings were taken. In this case there is no dispute that the parties were
not so living together, so that, up to a point, it was open to the wife to take criminal proceedings.
The next consideration, or the next step, isas the parties were living apart when criminal proceedings
were taken, does the subject-matter of the criminal proceedings relate to any act done by the husband
while they were living together? The answer is Yes, for there is no doubt that the act, ie the damage to the
machine, was done, if done at all, while the parties were living together: so that, up to this point, it is still
open to the wife, while living apart from her husband, to take proceedings in respect of the act of her
husband while they were living together; but here the beginning words and the concluding portion of the
proviso come into play, for they provide that no criminal proceeding shall be taken in such circumstances
unless

such property shall have been wrongfully taken by the husband when leaving or deserting, or
about to leave or desert, his wife.
So that, to succeed on her complaint, it would be necessary for the wife to show that the sewing
machine had been wrongfully taken by the husband when leaving or deserting, or about to leave or desert,
his wife. We consider that there was sufficient evidence in other respects to support the charge if it could,
as a matter of law, be held that the words wrongfully taken include deprivation of property by damage or
destruction, as was alleged in this case. Counsel for the appellant argued that the words wrongfully taken
connoted a trespass to property, and that to take property for the purpose of damaging or destroying it, or in
fact damaging or destroying it, is a wrongful taking within the meaning of the subsection. He stressed the
fact that, if the Legislature intended to confine the wrongful taking to larceny or kindred cases only, it would
have been a simple matter for the Legislature to have said so.
On the other hand, counsel for the respondent submitted that, if the Legislature contemplated any
wrongful acts other than larceny or kindred offences, it would also have been a simple matter for the
Legislature to have said unless such wrongful act was done by the husband in lieu of saying unless such
property shall have been wrongfully taken by the husband and, especially so, as in the earlier part of the
subsection the phrase any act done by the husband appears.
It is a primary rule of construction that the words of a statute are to be given their ordinary and natural
meanings, unless the context clearly otherwise requires. Regarded in its ordinary meaning unless the word
taken cannot be read as including damaged or destroyed. In this case the respondent never took the
sewing machine in the natural sense of the term: what he did (if the appellants evidence is accepted) was
that he smashed the machine, no doubt to deprive her of the use of it.
In our view the word taken indicates a limitation on the wrongful acts that could be committed by a
husband and would not include acts of damage or destruction. We are supported in this view by the fact
that the provisions of sub-s (3) have been substantially reproduced as a proviso to s 37 (1) of the 289
Larceny Ordinance, Cap 4, No 11 [T], whereas no such provision appears in the Malicious Damage
Ordinance, Cap 4, No 13 [T].
In reproducing the proviso in the Larceny Ordinance the Legislature must be taken to have been fully
aware of the wrongful acts that could be committed by one spouse against the property of the other, which
extend beyond larceny and kindred offences, eg malicious damage of property. It appears to us that the
words wrongfully taken as used in the Larceny Ordinance were adopted as a generic expression to cover
not only simple larceny but kindred offences. That being so, there is no sufficient reason why the identical
words which appear in s 15 (3) of the Married Womens Property Ordinance should not be given the same
meaning.
In our view, therefore, the words wrongfully taken relate only to cases of larceny and kindred offences
and do not include cases such as the one on appeal. We therefore uphold the magistrates dismissal of the
complaint, though not for the reasons stated by him. The appeal is dismissed without costs.
Appeal dismissed without costs.

(1959) 1 WIR 290

Pajotte v Babb
FULL COURT OF THE SUPREME COURT OF TRINIDAD AND TOBAGO
GOMES C J AND BLAGDEN J
18, 20 MARCH, 22 APRIL 1959

Practice Petty Civil Courts Executrixs action for recovery of possession Plea by defendant of legal title
Evidence pointing to equitable interest only Jurisdiction No jurisdiction to grant equitable relief Duty
of Petty Civil Court to strike out action No objection to jurisdiction taken at trial or on appeal Duty of Full
Court ex mero motu to take cognizance of question affecting jurisdiction and strike out action Petty Civil
Courts Ordinance, Cap 3, No 3 [T], s 17 (2) (a) and (3).
Practice Full Court Duty to take cognizance of any question affecting jurisdiction of trial court Power to
exercise all powers of trial court by amendment or otherwise RSC [T] O 60, r 4.
Section 17 (2) (a) of the Petty Civil Courts Ordinance, Cap 3, No 3 [T], enacts that:
(2) Notwithstanding the preceding provisions of this Ordinance, a Court shall not have jurisdiction

(a) to grant any equitable relief or remedy or any judgment or order in the nature of a mandamus or
injunction.

By s 17 (3):
If it shall be made to appear in the course of any action or proceeding that such action or
proceeding or any claim therein is not within the jurisdiction of the Court, the Court shall order such
action, proceeding or claim, as the case may be, to be struck out with or without costs as to the Judge
shall seem just.

The appellant, the executrix of B deceased, brought an action in the Petty Civil Court against the
respondent, Bs widow, claiming possession of the house 290 in which B and the respondent had been living
up to the time of B s death, and in which the respondent was then still living.
The executrixs claim was based on the provisions of B s will whereby he appointed the appellant his sole
executrix and devised the house and the leasehold land on which it stood to his four children and a
grandchild.
The respondent filed a special defence and counterclaim whereby she pleaded, inter alia, that at all material
times she had been in possession of the house, and that the house belonged to her by virtue of the fact that
B had acquired the lease of the land in their joint behalf for the purpose of erecting a house for both of them
there, and that such a house had been duly erected there by both of them with monies and materials
supplied by both.
The Petty Civil Court judge found that the respondent did have some share (the precise amount of which he
could not assess) in the ownership of the house, and, applying the doctrine of Rimmer v Rimmer ([1952] 2
All ER 863, [1953] 1 QB 63, [1952] 2 TLR 767, 96 Sol Jo 801, CA, 3rd Digest Supp), held that she was a
joint owner of the house. He dismissed the executrixs action and the executrix appealed.
Held: (i) Although the respondents defence set up that she had the legal title to the whole of the property,
the evidence and the trial judges findings thereon pointed to the ownership by her of only an undetermined
share or of some beneficial interest in it, so that the real substance of her defence was that she had some
equitable right or interest in the property.
(ii) As soon as it became apparent to the trial judge that the respondents case involved the setting up of an
equitable defence he should have appreciated that by virtue of the Petty Civil Courts Ordinance, Cap 3, No 3
[T], s 17 (2) (a), his jurisdiction was ousted and it was therefore incumbent upon him to strike out the action
in accordance with the provisions of s 17 (3).
(iii) The appellate court having under RSC [T] O 60, r 4, all the powers and duties as to amendment and
otherwise of the court of first instance would do what the trial judge should have done and order that the
action be struck out.
Action struck out without costs.
Cases referred to
Rimmer v Rimmer [1952] 2 All ER 863, [1953] 1 QB 63, [1952] 2 TLR 767, 96 Sol Jo 801, CA, 3rd Digest
Supp
Silver v Silver [1958] 1 All ER 523
Richards v Richards [1958] 3 All ER 513, [1958] WLR 1116
MacDonald v MacDonald [1957] 2 All ER 690, 3rd Digest Supp
Appeal
Appeal of Rita Pajotte against the decision of a judge of the Petty Civil Court, Port of Spain, dated 30
October 1957. The facts and arguments appear in the judgment of the court.
Bruce Procope (instructed by GR Annisette & Co) for the appellant
Hudson Phillips and Carlton Achong (instructed by Gordon Harper) for the respondent

Cur adv vult

GOMES CJ delivered the judgment of the court: This action was brought in the Petty Civil Court of Port of
Spain by Rita Pajotte, the executrix of the estate of one Alphonse Babb, against Isabella Babb, the widow of
the deceased, for possession of a house, which had been the matrimonial home of the deceased and his
widow. The executrix based her claim on a devise in the will of the deceased leaving the house and the
leasehold land on which it was situate to his four children and a grandchild.
The defendant filed a special defence and counterclaim to the action. In her special defence she
pleaded, inter alia, that at all material times she had been in possession of the premises and that the whole
of the premises belonged to her by virtue of the fact that the lease of the land had been procured by her 291
deceased husband in their joint behalf for the purpose of erecting a home for both of them, and that such a
house was subsequently erected thereon by both of them with materials and monies provided by both of
them.
The judge found that the defendant did have some share (the precise amount of which he could not
assess) in the ownership of the house and, on the authority of Rimmer v Rimmer ([1952] 2 All ER 863,
[1953] 1 QB 63, [1952] 2 TLR 767, 96 Sol Jo 801, CA, 3rd Digest Supp), held that she was a joint owner of
the property and that in consequence the action failed. He also dismissed the counterclaim but, in view of
our decision, nothing turns on that dismissal.
There was, undoubtedly, some evidence to support the judges finding that she had contributed and
assisted materially otherwise towards the erection of the house, which in fact was used as the matrimonial
home.
The executrix appealed on the ground that on the evidence she was entitled to judgment and that the
judge misdirected himself in holding that the principles in Rimmer v Rimmer ([1952] 2 All ER 863, [1953] 1
QB 63, [1952] 2 TLR 767, 96 Sol Jo 801, CA, 3rd Digest Supp) were applicable to the circumstances of the
case.
It is to be observed that an appeal of this nature is by way of re-hearing and this court is entitled to take
cognizance of any matter relating to the jurisdiction of the Petty Civil Court. We have made that observation
because, although in her special defence, the respondent appears to be claiming the legal title to the whole
of the property, yet the evidence and the judges finding on it point to ownership by her of only an
undetermined share or some beneficial interest in it. Where that situation arises, the doctrine in Rimmer v
Rimmer ([1952] 2 All ER 863, [1953] 1 QB 63, [1952] 2 TLR 767, 96 Sol Jo 801, CA, 3rd Digest Supp) and
related cases can or might be applied, except where it is displaced by other factors, such as a presumption
of advancement, as in the recent cases of Silver v Silver ([1958] 1 All ER 523) and Richards v Richards
([1958] 3 All ER 513, [1958] WLR 1116). The doctrine can also apply where a claim is made,
notwithstanding the decease of one spouse (see MacDonald v MacDonald ([1957] 2 All ER 690, 3rd Digest
Supp).
In the case on appeal no question of advancement arises, so that, prima facie, there was room for the
application of the doctrine, but that doctrine can only be exercised on equitable principles (see the cases
cited). Section 17 (2) (a) of the Petty Civil Courts Ordinance, Cap 3, No 3 [T], however, provides that a Petty
Civil Court shall not have jurisdiction to grant any equitable relief or remedy.
While a perusal of the provisions of the Petty Civil Courts Ordinance indicates that one of its objects is
that there shall be a final determination of the whole matter of the action that comes before it for trial (see s
30), yet the courts instituted or perpetuated by the Ordinance are courts (as their names imply) of limited
jurisdiction and cannot exercise, inter alia, an equitable jurisdiction (s 17 (2)); nor are they expected to
adjudicate in cases where important questions of law or fact are likely to arise (s 14).
The question which has been brought to notice by this court, and on which its decision is based, was
not raised or argued by either party in the Petty Civil Court or in this court, but it is the duty of this court mero
motu, to take cognizance of it and raise it, for the simple reason that it cannot exercise an appellate
jurisdiction on any matter in which the Petty Civil Court has no jurisdiction.
A considerable number of cases come before this court because judges of Petty Civil Courts do not
exercise the ample powers that are conferred upon them under ss 14 (3), 29 (2) and 30 of the Ordinance.
The failure to exercise those powers occasions much expense to litigants in coming to this court.
In the case on appeal we consider that, as soon as it became apparent that the substance of the
respondents case involved the setting up of an equitable defence and that there was some evidence of a
bona fide beneficial interest in her, the judge should have appreciated that his jurisdiction was ousted and it
then became incumbent on him to act in accordance with the provisions of s 17 (3) and strike out the action.
As this court has all the powers of the court of first instance we shall do what 292 the judge of that court
ought to have done. We accordingly order that the action be struck out, without costs here or below.
Action struck out without costs.

(1959) 1 WIR 293

Dougadeen v Ramsamooj And Others

FULL COURT OF THE SUPREME COURT OF TRINIDAD AND TOBAGO
GOMES C J AND BLAGDEN J
18 MARCH, 5 MAY 1959

Trespass Premises sub-let by plaintiff to tenant Attempted resumption of possession by plaintiff

Whether effective to enable plaintiff to sue in trespass.
Landlord and tenant Monthly tenancy Defendant let into possession by tenant under verbal agreement
without landlords consent Lease or licence Whether tenant entitled to resume possession What
constitutes effective resumption of possession.
The appellant, D, was a monthly tenant of the first respondent, X, of a house where she lived with her family
and ran a parlour business. Without Xs consent D concluded a verbal agreement with the second
respondent, Y, whereby Y was to occupy the premises for a few months in place of D, and pay the rent to X
in Ds name. The agreement was duly put into effect but when, after some months, D verbally requested the
premises back, Y refused. D took no special steps to recover possession and Y remained in possession,
continuing to pay the rent to X in Ds name, until after some 2 years had elapsed, when he purported to sell
the parlour business and transfer the premises to the third respondent, Z, who thereupon went into
occupation. Shortly afterwards D visited the premises which Z had left locked and, with a view to resuming
possession of them, placed her own padlock on the door. Later that same day X, Y and Z together broke off
Ds lock.
D sued X, Y and Z claiming damages for trespass, or in the alternative, for dispossession. Her claim was
dismissed.
Held: (i) The arrangement concluded between D and Y was not a mere licence but a tenancy agreement.
As such it could only have been determined by proper notice or by lawful re-entry and resumption of
possession.
(ii) There had been no notice, and the mere placing of a lock upon the premises did not constitute a
resumption of possession. Consequently at the time appellants lock was broken she was not in possession
of the premises and could not therefore maintain an action for trespass or dispossession in respect of them.
Appeal dismissed.
Cases referred to
Booker v Palmer [1942] 2 All ER 674, 87 Sol Jo 30, CA, 30 Digest (Repl) 539, 1737
Cobb v Lane [1952] 1 All ER 1199, [1952] 1 TLR 1037, 96 Sol Jo 295, CA, 3rd Digest Supp
Moss (E), Ltd v Brown [1946] 2 All ER 557, CA, 30 Digest (Repl) 531, 1684
Hess v Gitlis (1951), 158 EG 126, 1 CLC 8872

293
Marcroft Wagons, Ltd v Smith [1951] 2 All ER 271, [1951] 2 KB 496, 95 Sol Jo 501, CA, 2nd Digest Supp
Errington v Errington & Woods [1952] 1 All ER 149, [1952] 1 KB 290, [1952] 1 TLR 231, 96 Sol Jo 119, CA,
3rd Digest Supp
Facchini v Bryson [1952] 1 TLR 1386, 96 Sol Jo 395, CA, 3rd Digest Supp
Appeal
Appeal by Ivy Dougadeen against the decision of a judge of the Petty Civil Court of Princes Town, dated 17
November 1958. The facts and arguments are set out in the judgment of the court.
Bruce Procope (instructed by E Irwyn Cameron) for the appellant
Malcolm Butt QC and Carlton Achong for the respondents
Cur adv vult

GOMES CJ delivered the judgment of the court: This is an appeal from a decision of the Princes Town Petty
Civil Court. The appellant, who was plaintiff in the action, sued the three respondents for damages for
trespass upon and/or wrongful dispossession of a chattel house situated at Hindustan Junction, Princes
Town.
It was conceded that, prior to the events which gave rise to the action, the appellant Ivy Dougadeen was
a tenant of the chattel house paying $12.00 rent per month to the first-named respondent Ramsamooj.
The appellant occupied the premises with her son and daughter. Her son did a little welding business of
his own on part of the premises, while the appellant and her daughter ran a parlour on another part.
In evidence the appellant said that some time in the latter part of 1954, the second-named respondent
Samaroo approached her with a view to obtaining some accommodation on the premises for four or five
months for his own parlour business whilst he was awaiting the completion of premises elsewhere; that she
agreed to his proposal and that she and her daughter left the premises and Samaroo went into occupation.
It was arranged that Samaroo should pay the whole rent of the premises to Ramsamooj in the appellants
name. Ramsamooj was not a party to this arrangement: indeed, she was not even informed about it. The
appellants son on occasion continued to do a little welding work on some portion of the premises after
Samaroo went into occupation.
In February 1955, that is to say, after the four or five months had expired, the appellant asked Samaroo
to give up the premises but he put her off with various excuses from time to time.
This state of affairs continued for over two years until April or May 1957, Samaroo still paying the rent to
Ramsamooj in the appellants name, but in the latter month Samaroo disposed of his business and also
disposed, or purported to dispose, of the premises to the third-named respondent Sonnylal, who
immediately went into occupation and carried on a parlour business there.
On 27 May 1957, the appellant visited Sonnylal and he told her that he had bought the parlour business
from Samaroo but did not know she owned the place. He left the premises the same day after securing
them with a lock, leaving there a quantity of his stock in trade.
On the following day the appellant went to the premises and, without making any attempt at entry, put
her own lock on them. Later that day, she saw the three respondents break her lock and enter the premises.
It was in respect of that breaking and entry that she brought her action.
At the trial no evidence was led on behalf of the respondents, their counsel electing to rely on certain
submissions.
In our view the determination of this appeal hinges upon the nature of the agreement which was
concluded between the appellant and the respondent Samaroo and the legal status that Samaroo acquired
by virtue of that agreement.

294
There are substantially only three possibilities: either Samaroo became the assignee (by operation of
law), or the sub-tenant, or else the licensee of the appellant. If the respondent Samaroo became appellants
assignee, then appellant divested herself of her entire interest in the premises and could not subsequently
maintain an action for trespass. If the respondent Samaroo became the appellants sub-tenant then the
appellant would not be in possession of the premises and could not maintain an action for trespass upon
them, unless and until she had resumed possession of them. This she could only do upon a proper
determination of the sub-tenancy. Finally, if respondent Samaroo was the appellants licensee, then again
the appellant could not maintain any action for trespass whilst that licence was still subsisting; but directly
that licence was determined upon the licensee leaving the premises or attempting to put someone else in
them, then possession of the premises would revert to the appellant and she would be then in a position to
maintain an action for trespass.
In determining whether an agreement creates between the parties the relationship of landlord and
tenant or merely that of licensor and licensee, the decisive consideration is the intention of the parties; see
Booker v Palmer ([1942] 2 All ER 674, 87 Sol Jo 30, CA, 30 Digest (Repl) 539, 1737) per Lord Greene, M R
([1942] 2 All ER at pp 676,677) and Cobb v Lane ([1952] 1 All ER 1199, [1952] 1 TLR 1037, 96 Sol Jo 295,
CA, 3rd Digest Supp) per Somervell LJ ([1952] 1 All ER at p 1201). The parties to an agreement, however,
cannot turn a lease into a licence merely by describing it as such. Nor will the use of words appropriate to a
lease prevent the agreement from conferring a licence, if it appears from all the circumstances that it was
intended merely to confer a licence. In the absence of any formal document, intention can only be inferred
from the surrounding circumstances and the conduct of the parties; see Moss (E), Ltd v Brown ([1946] 2 All
ER 557, CA, 30 Digest (Repl) 531, 1684), Hess v Gitlis ((1951), 158 EG 126, 1 CLC 8872) and Marcroft
Wagons, Ltd v Smith ([1951] 2 All ER 271, [1951] 2 KB 496, 95 Sol Jo 501, CA, 2nd Digest Supp).
Whilst exclusive occupation of property for an indefinite period is no longer inconsistent with the
occupier having only a licence, it has not ceased to provide some evidence of a tenancy and, indeed, a
person who is let into exclusive possession is, prima facie, to be considered a tenant, unless the
circumstances negative any intention to create a tenancy (see Errington v Errington ([1952] 1 All ER 149,
[1952] 1 KB 290, [1952] 1 TLR 231, 96 Sol Jo 119, CA, 3rd Digest Supp).

Furthermore, if there is an agreement to make monetary payments, this, prima facie, indicates a
tenancy, although not conclusively, even if the payments are called rent (see Moss (E), Ltd v Brown ([1946]
2 All ER 557, CA, 30 Digest (Repl) 531, 1684) and Marcroft Wagons, Ltd v Smith ([1951] 2 All ER 271,
[1951] 2 KB 496, 95 Sol Jo 501, CA, 2nd Digest Supp.)
It has been said that in all cases, where an occupier has been held to be a licensee, there has been
something in the circumstances, such as a family arrangement, an act of friendship or generosity or suchlike, to negative any intention to create a tenancy (see Facchini v Bryson ([1952] 1 TLR 1386, 96 Sol Jo 395,
CA, 3rd Digest Supp) per Denning LJ ([1952] 1 TLR at p 1389).
A further consideration of importance is whether or not at the time of the transaction the occupier is
already on the premises. Where a transaction gives de novo the right of exclusive possession, prima facie,
a tenancy will arise (see Marcroft Wagons, Ltd v Smith ([1951] 2 All ER 271, [1951] 2 KB 496, 95 Sol Jo 501,
CA, 2nd Digest Supp).
According to the appellants evidence she intended that the respondent Samaroo should occupy the
premises for a period of four or five months only whilst other premises were being got ready for him
elsewhere. It is of significance, however, that what she did in fact was to close down her own parlour
business on the premises and move out, allowing the respondent Samaroo, not only to occupy the
premises, but also to run his own parlour business there. Moreover, when the period of four or five months
had expired, although she says she wanted the premises back, she made no serious attempt to recover
them for a period of over two years.
The reason for her inaction was no doubt because she did not really require the premises for her own
use and so permitted, and in so doing agreed to, the appellants continued occupation of the premises from
month to month as long 295 as he paid the rent. We say from month to month because, having regard to
the fact that the premises were business premises and that Samaroo intended to carry on business therein,
it could not have been in the contemplation of the parties that she could turn him out of the premises at a
moments or a days or even at a weeks notice; for the agreement contemplated a period of monthly
occupations, paying a monthly rent therefor. Such a situation is not compatible with the legal attributes of a
licence. Further, in stipulating that Samaroo should pay the monthly rent in her name, the appellant
probably wished to preserve for herself the right to recover the premises for her own use as and when she
wanted it; but here again it is extremely unlikely that it was contemplated that she would be free to do so at a
moments notice: that is not an arrangement from which an intention to create a licence can readily be
deduced. The real substance behind such an arrangement is rather that of a lease where the lessor retains
some measure of reversion.
In all the circumstances, and having regard to the principles enunciated in the authorities to which we
have referred, we have come to the conclusion that the verbal agreement concluded between the appellant
and the respondent Samaroo could not be regarded as a licence. It was a tenancy agreement which has
never formally been terminated. When the respondent Samaroo left the premises and disposed of his
business to the third-named respondent Sonnylal, it was indeed open to the appellant to determine her
tenancy agreement with the respondent Samaroo. This she could have done by notice or by re-entering
upon and taking possession of the premises. She did neither of these things. The mere placing of a lock
upon the premises does not constitute re-entry and resumption of possession. At the time that the three
respondents broke her lock and entered the premises the appellant in our view was not in possession of it
and was not therefore in a position to maintain an action for trespass upon them, nor likewise of
dispossession. The appeal is accordingly dismissed, with costs to be taxed.
Appeal dismissed.

(1959) 1 WIR 296

Doyle v Stephenson
FULL COURT OF THE SUPREME COURT OF TRINIDAD AND TOBAGO
GOMES C J AND BLAGDEN J
4 MARCH, 1 MAY 1959

Practice Petty Civil Court Summons for recovery of land Particulars . . . shall contain . . . the
annual value thereof Meaning of shall Petty Civil Courts Rules [T], r 52 Petty Civil Courts Ordinance,
Cap 3, No 3 [T], s 29.
The respondent brought an action in the Port of Spain Petty Civil Court by summons against the appellant
claiming recovery of a room.

Rule 52 of the Petty Civil Courts Rules [T] prescribes that:

In an action for the recovery of land the particulars shall contain a full description of the land
sought to be recovered and the annual value thereof and the rent (if any), and shall state the ground
on which possession is claimed.

The particulars endorsed on the summons contained no reference to the annual

296
value of the room sought to be recovered, but during the hearing of the case evidence was led from which
the trial judge could have found that neither the annual value of the room nor the rent payable in respect of it
exceeded the sum of $240.00, the statutory limit of his jurisdiction under s 12 (1) of the Petty Civil Courts
Ordinance, Cap 3, No 3 [T].
At the close of the case in the Petty Civil Court counsel for the appellant submitted that the summons was
bad for non-compliance with r 52 of the Petty Civil Courts Rules. The trial judge overruled the submission
and gave judgment for the respondent.
The appellant appealed: one of his grounds of appeal was that as the summons did not comply with the
provisions of r 52 of the Petty Civil Courts Rules, the Petty Civil Court judge had no jurisdiction to entertain
the action. This ground was treated as a preliminary objection and argument heard and a decision given
upon it separately. The case is reported on this point only.
Held: Rule 52 of the Petty Civil Courts Rules does not confer any jurisdiction on a Petty Civil Court. Its
provisions relate to pre-trial matters only and are directory and not mandatory.
Appeal on preliminary point disallowed.
Case referred to
Cooke v New River Co (1888), 38 Ch 56
Appeal
Appeal by Hamilton Doyle against the decision of a judge of the Petty Civil Court, Port of Spain, dated 17
May 1957. The relevant facts are fully set out in the judgment of the court.
Hutson (instructed by John B Wilson) for the appellant
Celestain (instructed by Lennox Pierre) for the respondent
Cur adv vult
GOMES CJ delivered the judgment of the court: In this case the plaintiff brought an action in the Port of
Spain Petty Civil Court for the recovery of a room in a dwelling house situate at No 25 Cipriani Boulevard in
the city of Port of Spain. Judgment was given for the plaintiff and against that decision the defendant now
appeals. As one of the grounds of appeal was, or was in the nature of, a preliminary objection, the court
decided that argument should first be heard, and decision given, on that ground. This point was taken in the
court below, but not until the conclusion of all the evidence that was given in the case. The point taken was
that the summons was bad for non-compliance with the provisions of r 52 of the Petty Civil Courts Rules [T]
(Vol VIII of the Laws Of Trinidad And Tobago at p 37).
At the hearing of the appeal, counsel for the appellant submitted that the provisions of r 52 are
imperative or mandatory and, as there was no endorsement on the summons of the annual value of the land
sought to be recovered, the court had no jurisdiction to entertain or to hear the action. In reply, counsel for
the respondent contended that the provisions of the rule are merely procedural or directory, that no objection
was taken to the summons before the hearing commenced, that the matter proceeded to a hearing during
which some evidence of the annual value of the premises was given, and that such a procedure cured any
defect in, or any objection that could have been made to, the summons.
Rule 52 of the Petty Civil Courts Rules is as follows:

In an action for the recovery of land the particulars shall contain a full description of the land
sought to be recovered and the annual value thereof and the rent (if any) and shall state the ground on
which possession is claimed.
Counsel for the appellant placed reliance on the use of the word shall in

297
the rule. One would have thought that the word shall connotes a command, that something must be
done: the word, however, has been interpreted in certain contexts as denoting something that is merely
permissive. In Cooke v New River Co ((1888), 38 Ch 56) ((1888), 38 Ch at p 69) Bowen LJ, said:
After all, the word shall is only the future tense and colourless, but it may receive, and it does
receive, in ordinary language either a compulsory colour or an optional colour from the context.
In Craies On Statute Law, 4th Edn, at p 240, the following passage appears:
As a general rule, the conditions imposed by statutes which authorise legal proceedings to be
taken are treated as being indispensable to giving the court jurisdiction. But if it appears that the
statutory conditions were inserted by the Legislature simply for the security or benefit of the parties to
the action themselves, that no public interests are involved, such conditions will not be considered as
indispensable, and either party may waive them without affecting the jurisdiction of the court.
And in Maxwell On The Interpretation Of Statutes, 7th Edn at p 316, the following passage is to be found:
It has been said that no rule can be laid down for determining whether the command is to be
considered as a mere direction or instruction involving no invalidating consequence in its disregard, or
as imperative, with an implied nullification for disobedience, beyond the fundamental one that it
depends on the scope and object of the enactment. It may, perhaps, be found generally correct to say
that nullification is the natural and usual consequence of disobedience, but the question is in the main
governed by considerations of convenience and justice, and, when that result would involve general
inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without
promoting the real aim and object of the enactment, such an intention is not to be attributed to the
Legislature. The whole scope and purpose of the Statute under consideration must be regarded.
In the first place, therefore, it is necessary to examine the provisions of the rule in some detail.
It will be observed that the rule prescribes that the particulars shall contain (1) a full description of the
land sought to be recovered, (2) the annual value thereof, (3) the rent (if any), and (4) the ground on which
possession is claimed. It seems clear that the degree of importance that attaches to each of those matters
is not on the same plane. For example, suppose that three of them were endorsed with fair precision and
the fourtha full description of the landwas not or was omitted entirely: could it be said in such a case that
the summons was defective in a vital way? We think not, because it is highly improbable that the defendant
would not have a good and fair idea of the property which is the subject-matter of the dispute, and any
reasonable amendment which could be made either at the commencement of, or during the hearing of, the
description of the property would not unduly prejudice or mislead the defendant.
Again, suppose the missing endorsement was the omission to state the annual value of the land: would
that be fatal? If it were held to be so, it would mean that the same rule that commanded or directed that
certain things shall be done, must be done as regards some of them only and not as regards others.
In our view the requirement in the rule with respect to indorsement of value is intended to serve a twofold purpose. The first is to inform the defendant that the plaintiff considers that the action is within the
jurisdiction of the Petty Civil Court, and therefore gives to the defendant an opportunity to prepare himself
298 to contend otherwise when the action is called for hearing, or to enable him to decide (where title to the
land is in question) whether he will apply to the Supreme Court under the provisions of s 14 of the Petty Civil
Courts Ordinance, Cap 3, No 3 [T], to have the action transferred to the Supreme Court. The rule also
serves the purpose of indicating to the judge who is to hear the action whether it is one that is considered as
coming within his jurisdiction. If an endorsement is made on the summons that the value of the subjectmatter is under $240, then the judge knows at the outset that the action is one over which he may exercise
jurisdiction, although, when the evidence is given, it may turn out to be otherwise. If, on the other hand, no
indorsement is made on the summons, then the judge is not in a position to know whether he should or
should not entertain the action. This purpose of the rule is to prevent the abortive hearing of an action,
during which it might transpire that the value of the subject-matter is outside the jurisdiction of the Petty Civil
Court, for in such case time may be wasted on entering upon the trial which ought never to have
commenced.

It must be remembered that the rule does not confer any jurisdiction on a Petty Civil Court Nor is the
question whether or not the court has jurisdiction dependent upon or to be determined by a statement in the
particulars of the value or annual value of the land, for the simple reason that the evidence may disclose that
the value of the land is in excess of the amount to which the jurisdiction of the court is limited.
The requirements of the rule pertain to pre-trial matters only, and as such are governed by the
provisions of s 29 (1) and (2) of the Petty Civil Courts Ordinance. Subsection (1) provides that all
summonses and other process shall be substantially in the prescribed form. The prescribed form of
summons in an action for the recovery of land is Form 13 in the Schedule to the Rules, and r 52 prescribes
certain things that should be stated in the particulars. In our view a summons would not be substantially in
the prescribed form unless it contained, at least in form, the things that are prescribed.
The question then ariseswhat is the position where a summons is not substantially in the prescribed
form? The answer is contained in s 29 (2) of the Ordinance, which is as follows:
In the event of any process being, in the opinion of the Judge, insufficient or substantially
defective, it shall be lawful for the Judge, in his discretion, on such terms (if any) as to postponement,
costs, and otherwise as he shall think fit, to amend the same or to permit the party in default to amend
the same: Provided that such power of amendment shall not be exercised where the Judge is of
opinion that the omission or irregularity has been intentional, for purpose of delay, evasion, or
deception, or otherwise not in good faith.
The provisions of this subsection provide a further reason for holding that the requirements of the rule
are not mandatory; for if they were, no rectification could be made by way of amendment.
We hold, therefore, that the provisions of r 52 are directory and not mandatory.
Appeal on preliminary point disallowed.

299
(1959) 1 WIR 300

Veronica Eloise Noel And Others v Philbert Noel

FEDERAL SUPREME COURTAPPELLATE JURISDICTION
HALLINAN C J, RENNIE AND ARCHER JJ
8 MAY, 20 JUNE 1959

Deed Conveyance of land No words of limitation appropriate to grant of fee simple Effect.
Statute of Uses [UK] Operation of statute in Grenada in 1884 Absence of declaration to uses Grant of
life interests Sufficiency of consideration to rebut resulting use Statute of Limitations [UK] Acquisition
of interest pur autre vie.
Recovery of possession Land Action in name of wrong plaintiff Plaintiff suing in personal capacity
Judgment obtained in representative capacity.
In 1884, L Y executed a deed conveying three parcels of land to AHN for life and after his death to his sons,
JN, GN, EN, and MN, share and share alike as tenants in common and at the death of either or any of them
his or their share to be reverted assigned transferred and bequeathed to the survivor or survivors of them to
be solely the property of the last survivor. AHN entered into possession and occupied the lands until his
death in 1907 GN who was the only son of AHN in Grenada at the time of AHNs death, then occupied the
lands. In 1923 when GN was still in occupation, JN returned to Grenada and GN allowed him to occupy one
of the parcels of land, continuing to occupy the other two parcels himself until his death intestate in 1940.
After GNs death, there were rival claims to these two parcels by the respondent, who was his eldest son,
and JN and his family who made several attempts to exclude the respondent from these lands. JN died in
1947 leaving his property by will to the appellants who are his widow and children. In an action for recovery
of possession, the judge decided that AHN had acquired a prescriptive title to the two parcels of land which
were the subject of dispute and that his interest had descended to GN. Alternatively, he held that GN had
acquired a prescriptive title to the lands which formed part of his estate on his death. He considered that the
deed made by LY in 1884 was void because (1) the consideration therein stated was neither good nor
sufficient, and (2) the Statute of Uses [UK] had not been complied with. He made an order for recovery of
possession in favour of the respondent as administrator of GNs estate.

Held: (i) that the deed passed a life interest to AHN and life interests to GN, JN, EN, and MN, because it did
not contain words appropriate to the grant of the fee simple;
(ii) the Statute of Uses [UK] was a part of the law of Grenada in 1884 but the grant of life interests obviated
the necessity to make a declaration to uses;
(iii) GN had prescribed against JN, EN, and MN, and acquired interests for the lives of such of them as were
alive in 1923;
(iv) the interest acquired for the life of MN passed on GNs death to the respondent.
Held further that the action should have been brought in the name of GNs administrator but as the
respondent was both administrator and heir and all the parties were before the court, the order for recovery
should stand.
Appeal dismissed.
Cases referred to
Re Caseys Patents, Stewart v Casey [1892] 1 Ch 104, 61 LJ Ch 61, 66 LT 93, 36 Sol Jo 77, 40 WR 180, 9
RPC 9, CA, 12 Digest (Repl) 212, 1523
Crisp v Gamel (1606), Cro Jac 128, 79 ER 111, 12 Digest (Repl) 262, 2032

300
Newman v Newman (1815), 4 M & S 66, 105 ER 759, 12 Digest (Repl) 329, 2547
Sanders v Sanders (1881), 19 Ch D 373, 51 LJ Ch 276, 45 LT 637, 30 WR 280, CA, 32 Digest 458, 1250
Besley v Besley (1888), 37 Ch D 648, 57 LJ Ch 464, 58 LT 510, 36 WR 604, CA, 43 Digest 797, 2346
Performing Right Society, Ltd v London Theatre of Varieties, Ltd [1924] AC 1, 93 LJKB 33, 130 LT 450, 40
TLR 52, 68 Sol Jo 99, HL
Brandts (William) Sons & Co v Dunlop Rubber Co, 1905 AC 454, 74 LJKB 898, 93 LT 495, 21 TLR 710, 11
Com Cas 1, HL, revsg, [1904] 1 KB 387, CA
Harmer v Armstrong [1934] Ch 65, 103 LJ Ch 1, 149 LT 579, CA, Digest Supp
Gandy v Gandy (1885), 30 Ch D 57, 54 LJ Ch 1154, 53 LT 306, 1 LTLR 520, 33 WR 803, CA, 12 Digest
(Repl) 49, 274
Yeatman v Yeatman (1877), 7 Ch D 210, 47 LJ Ch 6, 37 LT 374, 24 Digest (Repl) 793, 7826
Re Fowler 142 LT Jo 94
Appeal
Appeal from an order for possession made by a judge of the Supreme Court of the Windward Islands and
Leeward Islands. The facts are set out in the judgment of Archer J.
H E L Hosten (instructed by Hosten and Punch-Johnson) for the defendant-appellants
F M Henry and C Bristol (instructed by F M Henry) for the plaintiff-respondent
ARCHER J. The appellants are the widow and children of John Noel who died in 1947. The respondent is
the eldest son of George Noel, brother of John Noel, and a grandson of Augustine Henry Noel, father of
John Noel and George Noel. In 1884 Lizette Young executed a deed of conveyance by which she sought to
convey to Augustine Henry Noel for his life and to his children John Noel, George Noel, Elias Noel and
Matthias Noel, after his death, three parcels of land therein described. Augustine Henry Noel occupied
these parcels of land and on his death in 1907, George Noel who was the only one of his children living in
Grenada at the time took possession of the land and continued in sole possession of it for the statutory
period of limitation and beyond. In 1923 John Noel returned to Grenada and George Noel gave him one of
the three parcels of land, retaining for him self the other two parcels. George Noel died intestate on 16
September 1940, leaving two sons, the respondent being the elder, and a daughter. Letters of
administration of his estate were granted to the daughter, Angelina McQueen, in 1940 and on her death in
1941 the respondent obtained letters of administration of his fathers estate.
After George Noels death there was constant strife between the respondent and John Noel over the
two parcels of land which George Noel had retained and the feud was carried on after John Noels death by
his widow and children. The dispute reached the courts on several occasions and the intermittent litigation
which commenced in 1942 has now culminated in this appeal. In 1942 John Noel took the respondent to
court for trespassing on Cherry Hill, one of the two parcels of land. In 1943 he again took the respondent to
court : for trespassing on Cherry Hill and Caruth, the other parcel of land. In 1944 and 1946 he proceeded
against the respondent for trespassing on Caruth. After John Noels death Jane Noel, one of the appellants

to this appeal, prosecuted the respondent for trespass, and in 1948 Lawrence Noel, another appellant,
complained against him. The respondent in his turn prosecuted John Noel on one occasion.
In 1949 Matthias Noel returned to Grenada after a long absence. He claimed

301
to be entitled to the two parcels of land as the last surviving child of Augustine Henry Noel and brought
an action, No 87 of 1949, in the Supreme Court of the Windward Islands and the Leeward Islands, in which
Harold Noel and Neville Bailey were joined as plaintiffs, against Eloise Noel and Lawrence Noel, two of the
appellants to this appeal, claiming from them possession of these several lots of land. His writ was filed on
31 October 1949. Neither Eloise Noel nor Lawrence Noel entered appearance to the writ and judgment by
default was entered against them on 22 November 1949. On 24 November 1949, Matthias Noel sold the
two parcels of land which are the subject-matter of this appeal to Harold Noel and on 12 December 1949, he
sold the other portion of land in respect of which he had obtained judgment by default to Neville Bailey.
Harold Noel occupied the land which he had purchased from Matthias Noel but on 29 March 1950, an order
for the reinstatement of Action No 87 of 1949 was made and on 13 December 1952, a defence and
counterclaim to the action was delivered. By the counterclaim Eloise Noel and Lawrence Noel sought to
have the conveyances of the land to Harold Noel and Neville Bailey set aside and delivery of possession
made to the counterclaimants. Judgment in the action was on 20 October 1953, given in favour of Eloise
Noel and Lawrence Noel; and an order was made setting aside the conveyances to Harold Noel and Neville
Bailey and for the recovery of possession from Harold Noel.
In 1953 the respondent brought an action against the appellants Eloise Noel, Lawrence Noel, Jane Noel
and Denis Noel, for assaulting him on Caruth, and in 1955 the appellants Eloise Noel, Jane Noel, Augustina
Noel and Denis Noel had another dispute with the respondent over Cherry Hill which found its way into the
Magistrates Court.
The action out of which this appeal arises was brought on 24 June 1955. By his writ the respondent
claimed a declaration that he is entitled to possession of the Cherry Hill and Caruth lots of land, possession
of the said lots of land, and mesne profits. In his statement of claim, he alleged that his grandfather,
Augustine Henry Noel, died intestate in 1907 seised in fee simple in possession of the land, leaving four
lawful sons of whom the respondents father, George Noel, was one; that George Noel who was the only
child of his father living in Grenada at the time of his fathers death entered into possession of the two
disputed lots of land and of a third lot of which Augustine Henry Noel had also been seised in fee simple in
possession at his death, and continued in undisputed possession from 1907 until 1923 when John Noel
returned to Grenada; that George Noel gave John Noel the third lot of land but continued in possession of
the other two lots until his death in 1940; that his sister, Angelina McQueen, was granted letters of
administration of the estate of George Noel who died intestate and that after her death in 1941 the
respondent obtained letters of administration of the said estate; that after George Noels death there was
constant wrangling between the respondent and John Noel, and, after John Noels death, between the
respondent and members of John Noels family; and that the appellant, Elizabeth Marshall, had refused to
deliver possession of a house spot to the respondent.
The appellants denied that Augustine Henry Noel was seised in fee simple in possession at his death
and declared that he had only a life interest in the properties. They admitted paragraph 4 of the statement of
claim in which the respondent had set out that his father, George Noel, had entered into possession of the
three properties on Augustine Henry Noels death and continued in undisturbed possession of them from
1907 to 1923, but they denied paragraph 6 of the statement of claim in which the respondent had asserted
that George Noel had continued in possession until his death, contending that John Noel shared possession
with him. They further said, in paragraph 7 of their defence, that after George Noels death John Noel
remained in exclusive possession of the three properties up to the time of his death and was the only person
entitled 302 to them, and that they are now entitled as beneficiaries under his will to his share and interest.
They pleaded possession of the whole lot of land in answer to the respondents claim in respect of the house
lot occupied by the appellant, Elizabeth Marshall.
The respondent based his claim in the court below and in this court on the nullity of the deed executed
by Lizette Young in 1884. He contended that the absence from the deed of a statement as to valuable
consideration and the failure to include in it a declaration as to uses made the deed void; that the land
reverted to the grantor but that the grantee who entered immediately began to prescribe. Alternatively, his
counsel submitted that if the deed was good it created a life estate followed by a tenancy in common with a
right of survivorship but that the survivor could take only a life interest because the words of limitation
appropriate to the grant of a fee simple had not been used; and that George Noel had prescribed against his
brothers and his heir was now entitled. It is not clear to me, however, how it was being suggested on the
basis of this latter submission that George Noel had acquired the fee simple or any interest which continued
after his death.
For the appellants it was submitted that the deed was good because there was a clearly expressed and
fully sufficient statement of valuable consideration and the respondent had not proved that the Statute of
Uses [UK] applied to Grenada in 1884; that the Real Property Act, Cap 192 [Grenada], provided that a

feoffment was void at law unless made by deed, that it made no mention of the Statute of Uses and that by
implication a declaration to uses was not necessary to the validity of a conveyance of land; that the deed
disclosed the obvious intention of the grantor to convey to Augustine Henry Noel for life with remainder to his
children as tenants in common and joint tenants with a right of survivorship and that effect should be given
to this intention; and that the Statute of Limitations [U K] did not apply to this particular type of tenancy. It
was further submitted by counsel for the appellants that the judgment of 15 November 1946, in the
Magistrates Court against the respondent in an action for trespass brought by John Noel created an
estoppel against the respondent.
A further submission on behalf of the respondent was that judgment in an action for recovery was not
conclusive as to title and that the judgment against the respondent in the Magistrates Court in the action for
trespass brought against him by John Noel did not operate by way of estoppel because the Magistrates
Court is not a court of record.
The trial judge considered that the 1884 deed was a nullity. He held that the consideration expressed in
it was neither good nor reliable consideration for the purpose of a contract nor sufficient to rebut the
presumption of a resulting trust; that the Statute of Uses [U K] had not been complied with; and that
Augustine Henry Noel acquired a prescriptive title to the land which passed on his death to George Noel.
He further held that if the deed was not a nullity, George Noel and nevertheless himself acquired a
prescriptive title by his uninterrupted possession from 1907 to 1923 and that four of the appellants were
estopped in so far as the Caruth land was concerned by the judgment in an action brought in the Supreme
Court of Grenada by the respondent against Elivra Noel, Lawrence Noel, John Noel and Denis Noel for
assault and battery. The consideration named in the deed made by Lizette Young in 1884 is expressed to
be Augustine Henry Noels past and present faithful care and services. Despite the mention of present care
and services it is, I think, clear that that care and those services constituted past consideration at the time
the deed was executed. Reliance was placed by counsel for the appellants on the case of Re Caseys
Patents Stewart v Casey ([1892] 1 Ch 104, 61 LJ Ch 61, 66 LT 93, 36 Sol Jo 77, 40 WR 180, 9 RPC 9, CA,
12 Digest (Repl) 212, 1523) and it was further submitted that a debt of honour may furnish consideration for
a claim to payment. There can be no doubt that past consideration is not valuable consideration. The
circumstances 303 in a particular case may, however, be such as to justify the inference of a promise to pay
at the time the consideration was given. In this case there is nothing to warrant the implication of a promise
by Lizette Young to pay for past care and services at the time they were rendered or of a promise by
Augustine Henry Noel to render services in consideration of the grant of land and the expressed
consideration is therefore a nullity.
It cannot seriously be disputed that the Statute of Uses [U K] applied to Grenada in 1884. Grenada
capitulated to Great Britain in 1762 and was formally ceded to the British Crown in 1763. On 19 December
1964, a proclamation which recited the contents of a proclamation published on 7 October 1763, was
promulgated. It applied to the Colony of Grenada among other territories the laws of Great Britain as far as
the nature and circumstances of the Colony would permit. In 1779 Grenada was recaptured by the French
but it was restored to Great Britain by the Treaty of Versailles of 1783. On 10 January 1784, a proclamation
which recited the treaty of peace with France of 3 September 1783, and provided that by the restitution of
the Colony to the British Crown the laws of England, as far as the state and circumstances of Grenada
would permit, should again be in force in Grenada, was published. Support for the view that the Statute was
a part of the law of Grenada is also to be found in s 34 of, and the Third Schedule to, the Conveyancing and
Law of Property Ordinance, Cap 50 [Grenada]. The Schedule contains a specimen form of conveyance in
which the expression to and to the use of is employed.
There was no declaration to uses in the deed of 1884 and the consideration expressed was a nullity.
There is ample authority for the proposition that where a deed purports to dispose of the whole fee simple
but no valuable consideration is expressed and there is no declaration to uses the land results to the grantor.
(See Norton On Deeds, 1st Edn at p 373). The deed of 1884 did not, however, dispose of the fee simple. In
1884 a fee simple could not in Grenada be disposed of by a direct grant inter vivos except by a limitation to
the grantee and his heirs and it was not until 1897 that an alternative form of words was permitted as was
done in England by the Conveyancing Act, 1881 [UK]. A grant of land in Grenada in 1884 to a person for his
life with remainder to his children share and share alike as tenants in common and at the death of either or
any of them his or their share to be reverted, assigned, transferred and bequeathed to the survivor or
survivors of them and to be solely the property of the last survivor passed life estates to the children and not
the fee simple. Apart from other considerations, therefore, the proposition with which Norton On Deeds
deals and to which I have referred has no application to the provisions of the deed with which this case is
concerned.
There are two other propositions which are conveniently stated in Norton On Deeds together with the
authorities supporting them, at pp 200 and 204. They are (a) that there is a distinction between a
consideration which is illegal and one which is merely a nullity, for where a deed is made for a consideration,
partly good and partly a nullity, the deed may be enforced: Crisp v Gamel ((1606), Cro Jac 128, 79 ER 111,
12 Digest (Repl) 262, 2032), Newman v Newman ((1815), 4 M & S 66, 105 ER 759, 12 Digest (Repl) 329,

2547); and (b) that although if a man make a conveyance in fee simple without consideration there is a
resulting use to him, still if he make a conveyance, without stating any consideration, for life or in tail no use
results to him during the estate for life or in tail, as the tenancy created is a sufficient consideration: Shep
Touch 522; Vin Uses 188.
Since Lizette Young did not dispose of the fee simple but merely created life estates out of it neither the
circumstance that the consideration expressed in her deed is a nullity nor the absence of a declaration to
uses made the deed void or raised a resulting use: the deed was effectual to pass the life estates on the
termination of which the fee simple would revert to her possession or that of her heirs.
I pass now to a consideration of the interest acquired by George Noel. For 304 reasons which will
appear later in this judgment, I do not find it necessary to determine whether the deed created a tenancy in
common or a joint tenancy or a tenancy which was a combination of both in favour of the four children of
Augustine Henry Noel. There can be no question of either Augustine Henry Noel or his sons having
prescribed against the reversioners but George Noel could have and did prescribe against his brothers.
Indeed, the appellants, though perhaps unwittingly, conceded this when they admitted that he had been in
exclusive possession from 1907 to 1923, for Sanders v Sanders ((1881), 19 Ch D 373, 51 LJ Ch 276, 45 LT
637, 30 WR 280, CA, 32 Digest 458, 1250) illustrates the way in which one tenant in common can prescribe
against another and the same is, of course, true of a joint tenant. They asserted despite that admission that
John Noel assumed possession with George Noel of the land but this contention is untenable. The trial
judge has found that John Noel did not during George Noels lifetime exercise any rights over the land in
dispute adverse to George Noels interest and, moreover, it is clear law that John Noels title to the land
which was extinguished by prescription under s 27 of the Limitation of Actions Ordinance, Cap 122
[Grenada], could not be revived by acknowledgment of his right by George Noel.
There is no evidence as to whether Matthias Noel is alive or dead now but he was alive in 1940 and his
life interest in the properties had undoubtedly been extinguished at the same time as John Noels was and
for the same reason. George Noel, therefore, at the expiration of the statutory period of limitation acquired,
in addition to his own life interest, an interest for the life of Matthias Noel as well as an interest for the life of
each of his two other brothers if they were alive at the time.
Although the kind of interest such as was acquired through George Noels ouster of Matthias Noel is
referred to in at least one text-book as an interest pur autre vie, that interest was not an interest pur autre
vie such as is contemplated by the Wills Act, Cap 246 [Grenada], which makes the same provision for the
devolution of interests pur autre vie created or acquired by grant as was made by the Wills Act, 1837 [U K].
The United Kingdom Act re-enacted certain provisions of the Statute of Frauds [U K] which had made
estates pur autre vie devisable. George Noels acquired interest was, however, an interest transmissible on
his death in 1940 and by virtue of the provisions of the Real Estate Devolution Ordinance, Cap 191
[Grenada], it vested in his administrator. It is certain that this interest was subsisting in 1949 for it was in that
year that Matthias Noel returned to Grenada, and as Matthias Noel was active in the litigation which resulted
in a judgment against him on 20 October 1953, when the conveyances he had made to Harold Noel and
Neville Bailey were set aside, it must have continued to subsist. There is no presumption of Matthias Noels
death and the respondent, as the administrator of George Noels estate, is entitled to possession of the
lands in dispute. There has been some conflict of evidence as to whether or not he first took possession of
the lands after his fathers death, but it is beyond dispute that he has been asserting the right to possession
throughout and that as early as 1942 or 1943 John Noel and he had been contending for it. No
considerations of estoppel arise or affect the question for estoppel was not pleaded by the appellants and, in
my view, the respondent is entitled to hold his judgment, but there is a certain technicality that must be
overcome.
The respondent sued in his personal capacity and the case was contested throughout on that basis but
the trial judge gave judgment for him in his representative capacity. In the view I take the action ought to
have been commenced in the name of the respondent as administrator but that not having been done and
the case not having been conducted on the footing of a representative action no mere amendment of the
title of the action would now suffice to cure the defect. Rule 2 of O 16 of the Rules of the Supreme Court in
England, which is applicable in Grenada, permits the substitution or addition 305 of a person as plaintiff
where an action has been commenced in the name of the wrong person as plaintiff and the court is satisfied
that it was so commenced through a bona fide mistake. The mistake may be either one of fact or of law.
The respondent is George Noels heir as well as the administrator of his estate. As administrator he is
trustee of the interest in the land which has devolved upon him but as heir he is the cestui que trust. Order
16, r 11, which provides inter alia for the addition of parties as plaintiffs requires that the consent in writing of
the party to be added must be obtained and the case of trustee and cestui que trust forms no exception.
(See Besley v Besley ((1888), 37 Ch D 648, 57 LJ Ch 464, 58 LT 510, 36 WR 604, CA, 43 Digest 797, 2346)
In this case a right of property is concerned and it is essential that the legal owner be a party to the action.
In Performing Right Society, Ltd v London Theatre of Varieties, Ltd ([1924] AC 1, 93 LJKB 33, 130 LT 450,
40 TLR 52, 68 Sol Jo 99, HL) Lord Cave said [1924] AC at p 14):

That an equitable owner may commence proceedings alone and may obtain interim protection in
the form of an interlocutory injunction, is not in doubt, but it was always the rule of the Court of
Chancery, and is, I think, the rule of the Supreme Court, that, in general, when a plaintiff has only an
equitable right in the thing demanded, the person having the legal right to demand it must in due
course be made a party to the action: Daniells Chancery Practice, 7th Edn, Vol 1, p 172. If this were
not so, a defendant after defeating the claim of an equitable claimant might have to resist the like
proceedings by the legal owner, or by persons claiming under him as assignees for value without
notice of any prior equity, and proceedings might be indefinitely and oppressively multiplied. No doubt
the rule does not apply to a mortgagor and there may be special cases where it will not be enforced as
in William Brandts Sons & Co v Dunlop Rubber Co ( 1905 AC 454, 74 LJKB 898, 93 LT 495, 21 TLR
710, 11 Com Cas 1, HL, revsg, [1904] 1 KB 387, CA), where the defendant disclaimed any wish to
have the legal owners made parties.
Further on he said:
Further under O 16, r 11, no action can now be defeated by reason of the misjoinder or non-joinder
of any party; but this does not mean that judgment can be obtained in the absence of a necessary
party to the action, and the rule is satisfied by allowing parties to be added at any stage of a case.
In Harmer v Armstrong ([1934] Ch 65, 103 LJ Ch 1, 149 LT 579, CA, Digest Supp) an agreement to
purchase from certain defendants the copyright in certain periodicals was entered into by a defendant,
Armstrong, as agent and trustee for the plaintiffs and himself. In an action the plaintiffs claimed a
declaration that Armstrong entered into and held the benefit of the agreement as agent and trustee for each
of the plaintiffs as to two-fifths parts and for himself as to one-fifth part of the property therein comprised and
they further claimed against the other defendants specific performance of the agreement and an injunction
restraining all the defendants to the action except one named defendant from disposing of or dealing with
the property save with the plaintiffs consent and an order on the defendants to assign or procure the
assignment of that property to the plaintiffs and Armstrong or their nominee or nominees. The trial judge
dismissed the action as against the other defendants on the ground that the agreement being under seal
and the plaintiffs not being parties thereto they could not specifically enforce it save in separate proceedings
after obtaining leave of the court to sue in the name of Armstrong. On appeal it was held that as all the
parties to the agreement were before the court, the fact that it was under seal could not prevent the plaintiffs
from enforcing it in the action, when the agency of the defendant, Armstrong, had been established, and that
as Armstrong (having been found to be agent and trustee) was willing that the agreement should be carried
out, the court would decree specific performance thereof. Lord Hanworth, M R, after quoting the passage
from the judgment of Lord Cave in Performing Right Society, Ltd v London Theatre of Varieties, Ltd ([1924]
AC 1, 93 LJKB 33, 130 LT 450, 40 TLR 52, 68 Sol Jo 99, HL) to which I have referred, said ([1934] Ch at p
83):

306
So far we get this; beneficiaries are entitled to have their rights enforced: if the trustee will not
enforce them for them the beneficiaries can come before the court but they must bring before the court
the trustee also. In Gandy v Gandy ((1885), 30 Ch D 57, 54 LJ Ch 1154, 53 LT 306, 1 LTLR 520, 33
WR 803, CA, 12 Digest (Repl) 49, 274), to which I have referred in the course of the arguments, the
difficulty that arose was overcome by allowing ultimately one of the beneficiaries to sue but making the
trustee, who declined to take action, one of the defendants. It will be observed in the course of the
argument there that the court, fully appreciating the difficulties that were placed before it, raised the
question of what should be done and adjourned the proceedings in order that the action might be
properly constituted.
He then dealt with a criticism of counsel and a submission that the rule of law should be applied in its
strictness and continued:
But when one considers that argument one asks the question: Is the court in such a position that it
cannot provide any remedy to the beneficiaries? The answer that may be made is this : Separate
proceedings might be taken by the beneficiaries to have it declared that Armstrong was a trustee for
them and for himself and that when that had been declared they might obtain leave to sue in his name
if he was reluctant to sue. It has already been determined in the present proceedings that Armstrong
was a trustee. When that leave to sue in Armstrongs name had been obtained these two plaintiffs in
the name of Armstrong would then bring their action against the present defendants, the company, the
vendors, for specific performance. At the present time that involves circuity of action. Is that what the
court at the present time ought to require? Sir Herbert answers: Yes, because there is the rule of law,

and that rule is only modified or relaxed in special circumstances. What the special circumstances
may be must depend in each case upon its own facts and if special circumstances are required I am
quite prepared to find that they exist in the present case. I should be sorry to think that we put the
parties to the expense of separate proceedings to get leave to sue in Armstrongs name when
Armstrong himself is now before the court and has admitted by his counsel that if it is declared that he
was a trustee and his cross-appeal fails, then as a trustee he wishes to share in the fruits which he, as
one of the beneficiaries, is entitled to receive.
Lord Hanworth quoted O 16, r 11, and continued:
We have actually before us Armstrong declared to be a trustee for himself and the two plaintiffs.
There are no absences in the matter of parties. We have the two plaintiffs who are undoubtedly
entitled to take some proceedings as beneficiaries and ultimately, if necessary, to sue in Armstrongs
name. It would seem almost absurd to send these parties away and to force them to incur greater
costs, more circuity of action. Surely the right course is to deal with the case in the words of O 16, r
11. For these reasons I have come to the conclusion that, accepting the judgment of the learned judge
up to the point at which he found himself compelled to yield to the obstacle of the rule of law we ought
to say that in all the circumstances of the case we are prepared, as all the parties are before the court,
to give the remedy to which they would ultimately become entitled after greater expenditure and
greater delay, namely, specific performance of the contractthe contract in which the defendant
Armstrong will share together with the plaintiffs.
In the same case Romer LJ, in the course of his judgment referred to a passage in the judgment of Hall V-C,
in Yeatman v Yeatman ((1877), 7 Ch D 210, 47 LJ Ch 6, 37 LT 374, 24 Digest (Repl) 793, 7826), a case
relating to residuary legatees. Hall V-C, said:
My impression rather is that it would be a correct holding to say that if the circumstances of any
given case are such that upon an inquiry directed 307 as to whether any and what proceedings should
be taken, the court upon the materials before it would come to the conclusion that it was a proper case
for proceedings to be taken, although not necessarily and absolutely certain that they would be
successful, there it would be a proper case to allow a party to sue in his own name.
No application was made by the respondent either in the court below or in this court to have himself as
administrator added as a plaintiff. Such a course would have been inconsistent with the claim that he was
setting up. In the notes to O 16, r 11, under the rubric By whom made it is said: Persons not parties may
apply to be added (Re Fowler ( 142 LT Jo 94), or the court may direct of its own motion. But even if the
court may direct of its own motion it would not appear that the consent in writing of the party to be added
can, in the ordinary case, be dispensed with. Besley v Besley ((1888), 37 Ch D 648, 57 LJ Ch 464, 58 LT
510, 36 WR 604, CA, 43 Digest 797, 2346) was the ordinary case of trustee and cestui que trust. I entertain
grave doubt that the requirement of consent in writing can have any application where, as in this case, the
trustee and the cestui que trust are one and the same person. It would be extremely fatuous to require
consent in writing or at all in such a case and, indeed, consent could have little or no meaning in such
circumstances, in addition to which there would seem to be no need for it as there well might be in other
circumstances. I prefer, however, for the purposes of a decision in this case, to adopt the reasoning of
Hanworth, M R, in Harmer v Armstrong ([1934] Ch 65, 103 LJ Ch 1, 149 LT 579, CA, Digest Supp). It would
be absurd to insist on a strict adherence to form thereby prolonging the litigation between the parties, all of
whom are before the court, and in the circumstances of this case, I think that the respondent should be
given the relief to which he would undoubtedly become entitled after further expenditure of time and money.
In my judgment, the appeal should be dismissed with costs.
HALLINAN CJ. I have read the judgment of Archer J I agree with his reasons and the conclusion he has
reached.
RENNIE J. I concur.
Appeal dismissed.

308
(1959) 1 WIR 309

Rouse v Rouse
SUPREME COURT OF BARBADOSAPPELLATE JURISDICTION
HANSCHELL J
18 SEPTEMBER 1959

Husband and wife Maintenance Husband ordering wife to leave the home Constructive desertion.
The wife applied to a magistrate for an order for maintenance on three grounds, viz, persistent cruelty,
desertion and wilful neglect, and the magistrate made an order in respect of all three grounds. The husband
appealed to the Assistant Court of Appeal and that court reversed the decision of the magistrate and
dismissed the application. The wife then appealed to the Court of Error, the jurisdiction of which court now
vests in the Supreme Court.
Held: (i) the alleged cruelty was not proved.
(ii) the husbands words ordering the wife to leave the matrimonial home amounted to constructive
desertion. Edwards v Edwards ([1948] 1 All ER 157, [1948] P 268, [1948] LJR 670, 112 JP 109, 64 TLR 61,
92 Sol Jo 98, 46 LGR 93, DC, 2nd Digest Supp) followed.
Appeal allowed.
Editorial Note. An appeal in this matter is pending to the Federal Supreme Court.
Case referred to
Edwards v Edwards [1948] 1 All ER 157, [1948] P 268, [1948] LJR 670, 112 JP 109, 64 TLR 61, 92 Sol Jo
98, 46 LGR 93, DC, 2nd Digest Supp
Appeal
Appeal from the decision of a magistrate. The facts appear in the judgment.
E W Barrow and G C R Moe for the appellant
G B Niles for the respondent
HANSCHELL J. In this case the complainant appellant applied to the magistrate for an order for
maintenance on three grounds, namely, persistent cruelty, desertion and wilful neglect, and the order for
maintenance of $5.00 a week was made by the magistrate on all three grounds. The magistrate did not in
his order find the date of desertion. On appeal the Assistant Court of Appeal reversed the magistrates
decision and dismissed the case on its merits.
The appeal before me has been argued on behalf of the appellant on the ground that the Assistant
Court of Appeal wrongly held that they were bound by a decision of the said Assistant Court of Appeal in a
criminal matter based on the same facts and circumstances, in consequence of which they have reversed
the magistrates order and dismissed the case. It was also argued for the appellant that even if the Assistant
Court of Appeal were right in holding that the alleged act of cruelty on 13 December 1956, was not proved
and that the respondent could not be found guilty of desertion on these same circumstances, the Assistant
Court of Appeal had found that the respondent had repeatedly ordered his wife to leave the matrimonial
home on the said 13 December 1956, and by subsequent conduct has shown that he intended her to leave
on 13 December 1956, in consequence of which she left and that he would be guilty of desertion in the use
of those words unaccompanied by any other act in the light of the clear intention which is supported by the
evidence of his subsequent conduct.
From the record in this case it appears to me that counsel for the respondent argued that the Assistant
Court of Appeal were bound by their previous decision in the criminal matter. I have studied the record of
evidence both before the magistrate and in the Assistant Court of Appeal as well as the judges reasons and
I think that the judges went into this matter very carefully and that they are well supported by the evidence in
their finding that the alleged act of cruelty on 13 December 1956, is not proved. The medical evidence is
certainly not conclusive and the failure to call Miriam Inniss in the earlier police case,

309
in view of the nature of her evidence,* is not explained. I also think that the Assistant Court of Appeal
were right in holding that the same facts cannot in these circumstances be used for desertion.

The reasons do not show that the Assistant Court of Appeal held that they were bound by the decision
in the criminal matter. This leaves the final point which was raised by the appellant in this court; that the
words of the respondent repeatedly ordering the appellant to leave, amount to constructive desertion on his
part. I am of the opinion that these words do amount to constructive desertion. Mere words, ordering a
spouse to leave the matrimonial home uttered animo deserendi can amount to constructive desertion
(Edwards v Edwards ([1948] 1 All ER 157, [1948] P 268, [1948] LJR 670, 112 JP 109, 64 TLR 61, 92 Sol Jo
98, 46 LGR 93, DC, 2nd Digest Supp).
The Assistant Court of Appeal saw the appellant and the respondent and heard them give evidence and
that court has found that the respondent told the appellant, Woman I tell you left my house, Woman left my
house! and that he said this to her over and over again. This was accompanied by words that he was
bossing the house. In consequence of this the appellant left. I am not in any doubt that the respondent
intended her to leave for when she subsequently returned on one occasion and found him there he did not
invite her to return, on the contrary, he told her that if she came there again he would kick her. I think this is
evidence of an intention to put an end to consortium and goes beyond a husband imposing his authority on
a nagging wife. I do not think that in the face of the repeated orders to leave that the appellant wrongly
interpreted it by leaving.
I think that these repeated orders amounted to such a grave and weighty matter as to justify the wife in
leaving and I find the respondent guilty of constructive desertion on 13 December 1956.
The magistrate omitted the date of the desertion. I think that this court should insert that date inasmuch
as the date itself was never in dispute. I think the magistrates order of $5.00 a week should be restored.
The decision of the Assistant Court of Appeal is reversed. The respondent is guilty of desertion on 13
December 1956, and is ordered to pay into court $5.00 a week for the support of the appellant. The
appellant is awarded her costs to be taxed.
Appeal allowed.

(1959) 1 WIR 310

Re Harford Harford v Morris And Others

SUPREME COURT OF BARBADOSCIVIL JURISDICTION
HANCSHELL J
28 MAY 1959

Will Construction Residuary clause.

The will of the testatrix was in the following form:

his is the last Will & Testament of me Henrietta Maric Louise Harford of Harbour View, Highgate, St Michael
Barbados made this day of 1947. I leave & bequeath my I fifth share of Springs Estate St Andrews Grenada
as followsone half to my Sister Sylvia Ena Marie Antoinette Smiththe other half to my two dear nieces
Mary Agnes Morris & Anne E Morris her two daughters equally between them.
My house Harbour View Highgate, St Michael all buildings thereto on the 2 acres attached to it to my
Fathers niece, my cousin & devoted friend & companion of many years Mary Marcelle Harford to live in
undisturbed

310
until such time as she decides to sell the sameone third of the purchase money to go to her along with
some furniture given to her by me during her residenceThe other two thirds of the purchase money to meet
legacies as follows200 to my niece & godchild Anne E Morrisa sum not exceeding 100 to my Sister
Mary Josephine Charlotte Milner (Widow)the same 100 to my eldest brother Frederick Ramsey Harford
the same to my brother Edwin Joseph de Bellot Harford of Vendome St Georges Grenada the same to my
nephew Allan Francis Harford now of 69 Elgin Ave. Maida Vale London50 to his Sistermy godchild
Gracie McLellan (Mrs?) 10 to the Reverend Mother of the Convent Our Ladys Priory Haywords Heath10
to Mother Bonaventure Moran of the Ursuline Convent Georgetown Demerara& the residue equally to my
two Nieces Mary Lilian Agnes Morris & Anne E Morris.

All interested persons were made defendants on an originating summons taken out by the sole qualified
administrator (with the will annexed) to determine the following questions:
(i) Whether any, and if so what part of the said estate is or should be distributable as upon an intestacy of
the testatrix, and, if so who would be entitled thereto.
(ii) Whether the testatrixs whole residuary estate is included in and covered by the following gift, which
appears at the end of the said will and immediately after a series of testamentary pecuniary legacies
specified to be payable out of the proceeds of sale of specific realty, namely, the property described as
Harbour View, Highgate, Saint Michael (there being no other residuary clause in the said will), and the
residue equally to my two nieces Mary Lilian Agnes Morris and Anne E Morris, or only the undisposed-of
portion of the proceeds of sale of the said property Harbour View which the testatrix has made applicable
to specific and partial purposes, that is to say, certain testamentary pecuniary legacies.
(iii) In the event of the aforementioned testamentary pecuniary legacies lapsing, whether the said lapsed
legacies would go to the said Mary Lilian Agnes Morris and Anne Elizabeth Morris, or fall into the general
residue (assuming there is a difference between the two, dependent on the answers to questions (i) and (ii)
above).
Held: The residual clause in question although ambiguous was nevertheless intended to affect the general
residue of the estate; and no part of the estate was distributable as upon an intestacy. The testatrixs whole
residuary estate was included in and covered by the following gift and the residue equally to my two nieces
Mary Lilian Agnes Morris and Anne E Morris.
Direction accordingly.
Editorial Note. On construction of wills, see 34 Halsburys Laws (2nd Edn), para 258.
Cases referred to
Jull v Jacobs (1876), 3 ChD 703, 35 LT 153, 24 WR 947, 44 Digest 277, 1104
Crooke v De Vandes (1805), 11 Ves 330, 32 ER 1115, LC, previous proceedings (1803), 9 Ves 197, LC, 44
Digest 742, 5994
Boys v Morgan (1838), 3 My & Cr 661, 2 Jur 608, 40 ER 1081, LC, 44 Digest 743, 6007
Ommanney v Butcher (1823), Turn & R 260, 37 ER 1098, 44 Digest 726, 5781
Say v Creed (1847), 5 Hare, 580, 16 LJCh 361, 11 Jur 603, 67 ER 1041, 44 Digest 882, 7392

311
Doe d Wall v Langlands (1811), 14 East, 370, 104 ER 644, 44 Digest 565, 3826
Re Bassetts Estate, Perkins v Fladgate (1872), LR 14 Eq 54, 41 LJCh 681, sub nom Re Bassetts Estate,
Parkins v Fladgate, 20 WR 589
Re Harrison, Turner v Hellard (1885), 30 ChD 390, 55 LJ Ch 799, 53, LT 799, 34 WR 420, CA, 44 Digest
550, 3684
Re Messengers Estate, Chaplin v Ruane [1937] 1 All ER 355, 81 Sol Jo 138
Action
Action by originating summons.
W H A Hanschell (instructed by Yearwood and Boyce) for the plaintiff
J S B Dear (instructed by Cattle Catford & Co) for the defendants
HANSCHELL J. The plaintiff, Geoffrey Leonard Harford, as sole qualified administrator, with the will
annexed, and in his individual capacity, brings this action by originating summons under O 42, r 1, of the
Rules of the Supreme Court, 1958 [B], and by virtue of the provisions of s 82 of the Guardians, Executors,
Administrators and Trustees Act 1891 [B].
The next-of-kin, including the heir-at-law, at the time of the testatrixs death, are the same persons who
are now next-of-kin, and the heir-at-law is also the same person. They have all been made defendants
together with Mary Lilian Agnes Morris and Anne Elizabeth Morris, the persons named in the clause by
which the gift of residue is made.
All the defendants have been duly served in accordance with the order made on 28 November 1958,
and of these, Sylvia Ena Marie Antoinette Smith, Mary Lilian Agnes Morris and Anne Elizabeth Morris have
entered appearance.

The will is set out in paragraph 2 of the affidavit of the plaintiff. For the purpose of construction of this
will, and in order to see whether any light is thrown on the construction of it by its form, I have looked at and
examined the original will filed in the registry of this court. The will is authenticated as that mentioned and
referred to in the order for probate, dated 5 February 1954, and made by the then Chief Justice, Sir Alan
Collymore.
It is a holograph will. It is obviously not drafted by any skilled person anda yet composed in part of wellconstructed phrases, and there is some use of technical terms. From this writing as a whole, it would
appear that the testatrix had recourse to testamentary document or documents, skilled or professionally
drafted, in the drawing up of this her last will and testament; this of course is pure conjecture.
The testatrix begins her will This is the last Will and Testament of me Henrietta Marie Louise Harford
as it first appears, the first paragraph ends with the disposal of her interest in Springs Estate, St Andrews,
Grenada; this paragraph appears to end half-way along a line, and is punctuated with a dash. This will
continues apparently, again at first sight, with another paragraph, commencing with the words My house
Harbour View; this second paragraph continues, at least, to the end of the phrase 10 to Mother
Bonaventure Moran of the Ursuline Convent Georgetown Demerara which phrase ends halfway along a
line, and is punctuated with a dash. There then follows on the remainder of this same line immediately
after the dash, and then at the extreme end of the said line the word go. This symbol and this word appear
to be the remains of some phrase which has been erased, thus leaving the space in this line after the word
Demerara. The next line of the will is taken up by the words, symbols and figures as follows:
200 to my niece and godchild Anne E Morris with no punctuation following the word Morris.
However, it is clear a that the last-mentioned phrase belongs earlier in this will at the place where there is an
interlineation X 200 to my godchild.

312
The last two lines of the will are taken up with the clause & the residue equally to my two nieces Mary
Lilian Agnes Morris & Anne E Morris.
When the above-mentioned phrase X 200 to my niece and godchild Anne E Morris is placed in the
will where the interlineation occurs, and where it was obviously intended by the testatrix to be, the second
apparent paragraph still ends half-way along a line and is punctuated by a dash (as is the case with the first
apparent paragraph), and in the next line there follows the clause & the residue equally to my two nieces
Mary Lilian Agnes Morris & Anne E Morris. Although there was space in the line in which the second
apparent paragraph ends the testatrix did not use the space for the writing of the phrase X 200 to my
niece and godchild Anne E Morris, in spite of the fact that it appears that the erasure which left this space
must reasonably have been made before the writing of the fact phrase X 200 to my niece and godchild
Anne E Morris, for the fact that the capital leltters A, E and M of Anne E Morris occurring in the said phrase
definitely encroach on the said space and show no signs of partial erasure. For this reason and for the
purposes of construction, this space left by the testatrix at the end of the second apparent paragraph
remains, and the will remains as if framed in three apparent paragraphs (after the phrase X 200 to my
niece and godchild Anne E Morris is placed in its proper position). Thus the third apparent paragraph is
composed solely of the phrase & the residue equally to my two nieces Mary Lilian Agnes Morris & Anne E
Morris.
In my opinion, on a grammatical construction of this will, it will be seen that, except for its formal
commencement, the whole will comprises one sentence, beginning with the words I leave and bequeath.
In this sentence the verbs are leave and bequeath operating as one verb, and the rest of the will comprises
the predicate.
On examination of the hand writing in this will, the testatrix shows no distinct difference between the
common m and the capital M. In consequence of this it is not clear whether the second apparent
paragraph begins with a capital letter after the dash. By her use of the symbol for the word and at the
beginning of the residuary clause which forms the third apparent paragraph, begins with a capital letter after
the dash. By her use of the symbol for the word and at the beginning of the residuary clause which forms
the third apparent paragraph, it is again not possible to determine whether she intended a capital A for the
word and or not, and no paragraph is grammatical begun with a conjunction.
Throughout her will the testatrix has for the most part used dashes in separating phrases from each
other. She has ended each of the first two apparent paragraphs with a dash, and has indeed begun the
second paragraph with an additional dash. It is not clear what punctuation is intended by the use of these
dashes, especially when the will is grammatically construed. A dash usually denotes a brief pause. In
general, regard is not paid to punctuation in a will, and in this case although I have regarded it, I have
derived no assistance therefrom. Grammatically, the conjunction and beginning the residuary clause can
only reasonably be construed as joining this clause to the end of the apparent paragraph which precedes it;
likewise this said preceding paragraph itself contains no verb; it is part of the predicate of the verbs leave
and bequeath, and therefore cannot stand separated as a true paragraph.

The originating summons contains three specific questions for determination by the court, which is
procedurally necessary and correct, but these three questions depend upon the determination of one
question only, that is to say, whether the said clause & the residue equally to my two nieces Mary Lilian
Agnes Morris & Anne E Morris disposes of the general residue or only of the undisposed-of portion of the
proceeds of sale of the said property Harbour View.
In construing a will the cardinal rule for the function of the court of construction, is that the intention of
the testator as declared by him and apparent in the words of the will must be given effect as nearly as may
be consistent 313 with law; and the overriding rule of construction is that the testators intention is collected
from a consideration of the whole will.
In the present case the testatrix has clearly disposed of her interest in the Springs Estate and after
dealing with Harbour View which was the only other real estate of which she died possessed (as I am
reliably informed by the plaintiffs affidavit and by counsel for the plaintiff in the course of the proceedings),
she appends a clause at the end of the will, in which she gives the residue to Mary Lilian Agnes Morris and
Anne Elizabeth Morris.
The will contains no words to show clearly whether this gift of residue is intended to dispose of the
general residue or only of specific residue.
This residuary clause is in such words as are capable of disposing of the general residue of the
deceaseds estate, or of the undisposed-of proceeds of sale of Harbour View. It is placed at the end of the
will where one may reasonably expect to find a general residuary clause; and it is also so placed that it
immediately follows the partial disposal by the testatrix of the proceeds of sale of Harbour View. So also,
in this will, in which the testatrix has devised her interest in the Springs Estate and partially disposed of the
proceeds of sale of Harbour View, she has ended her will with a clause capable of disposing of the
personalty not mentioned in the will, and capable of including the residue of the proceeds of sale of Harbour
View as well.
In Jull v Jacobs ((1876), 3 ChD 703, 35 LT 153, 24 WR 947, 44 Digest 277, 1104) it was held by Malins
V-C, that, as a general rule, where a will disposes of a variety of property, and winds up with a gift of the
remainder or residue, it is a gift of the general residue, but that in that case the form of the will showed that
the testator meant to give only the remainder of the particular funds with which he was dealing in that
paragraph. The judgment dealing with this particular aspect of that case is a short one and the first
paragraph of that judgment is as follows ((1876), 3 Ch D at p 705):
I think that, as a general rule, where a will disposes of a variety of property belonging to a testator,
and winds up with a gift of the remainder or residue, it is treated as a gift of the general residue; but
each case must depend upon the particular circumstances and the framing of the will. It seems to me
that this will shows an intention on the part of the testator to dispose of a particular part of his property
in each particular paragraph, and, after disposing of the bulk of his property in that way, he adds that
now in question.
Although the will under construction is at first sight framed as two or three paragraphs, its grammatical
construction does not admit of such framing. Consequently the framing of this will is not itself clear and
distinct. As laid down by MALINS, V-C, in Jull v Jacobs ((1876), 3 ChD 703, 35 LT 153, 24 WR 947, 44
Digest 277, 1104), each case must depend upon the particular circumstances and the framing of the will.
In the present case the testatrix died possessed of personalty consisting of furniture, money on bank
accounts, and a share of the estate of her late father, none of which is specifically mentioned in her will; the
will ends with the residuary clause in question, the words of which, in my opinion, do not clearly and
unambiguously refer to the proceeds of sale of Harbour View alone, as distinct from general residue, or
vice versa, simply by reason of its situation in the framework of the document, and I am therefore unable to
decide this question by application of the principle in the said case Jull v Jacobs ((1876), 3 ChD 703, 35 LT
153, 24 WR 947, 44 Digest 277, 1104.
In Jarman On Wills, 8th Edn, Vol II at p 1025, under a sub-heading Particular Residuary Request, the
learned author states the law as follows:
When a testator, after disposing of part of his personal property, makes a gift of the residue, or
remainder, or what remains, etc, the question may arise whether he refers to his general personal
estate, or to the undisposed-of portion of a certain property or fund which he had just before made
applicable to specific and partial purposes. There is no rule of construction on this point.

314
It appears that in a number of cases where this question has arisen there have been decisions both ways; in
Crooke v De Vandes ((1805), 11 Ves 330, 32 ER 1115, LC, previous proceedings (1803), 9 Ves 197, LC, 44
Digest 742, 5994) and in Boys v Morgan ((1838), 3 My & Cr 661, 2 Jur 608, 40 ER 1081, LC, 44 Digest 743,
6007) the gift was held to be of the general residue, whereas in Ommanney v Butcher ((1823), Turn & R

260, 37 ER 1098, 44 Digest 726, 5781) and Say v Creed ((1847), 5 Hare, 580, 16 LJCh 361, 11 Jur 603, 67
ER 1041, 44 Digest 882, 7392) it was held to be a gift of residue of specific property.
In the report of Boys v Morgan ((1838), 3 My & Cr 661, 2 Jur 608, 40 ER 1081, LC, 44 Digest 743,
6007), the will in question is set out (40 ER at p 1082) and the last sentence of the will is as follows:
I guess there will be found sufficient in my bankers hands to defray and discharge my debts, which
I hereby desire Mrs Eliza Morgan to do, and keep the residue for her own use and pleasure.
This passage was held under the circumstances and upon the whole context of the will, to amount to a gift of
the general residuary personal estate to Eliza Morgan. I have set out the portion of the will in question from
Boys v Morgan ((1838), 3 My & Cr 661, 2 Jur 608, 40 ER 1081, LC, 44 Digest 743, 6007) because it clearly
illustrates an instance in which the circumstances and the whole context of the will appear to be the
guiding factor as to intention of the testator rather than the framing of the will. For in Boys v Morgan
((1838), 3 My & Cr 661, 2 Jur 608, 40 ER 1081, LC, 44 Digest 743, 6007) the framing of the residuary
clause by itself in the sentence in which it occurs would appear to me to be stronger for the interpretation of
a gift of specific residue than of a gift of general residue. The test here may be contrasted therefore with
that in Jull v Jacobs ((1876), 3 ChD 703, 35 LT 153, 24 WR 947, 44 Digest 277, 1104), where it appears that
the framing of the will must have been the deciding factor.
I am left in considerable doubt as to the intention of the testatrix in the present will, as expressed in the
residuary clause under review, and I am of the opinion that this clause is ambiguous.
I must therefore have recourse to the rules of construction applicable where the construction of the will
is doubtful.
In 34 Halsuburys Laws (2nd Edn) at p 204, para 258, it is stated as follows:
A testator may well intend to die partially intestate; when he makes a will he is testate only so far
as he has expressed himself in his will. Where, however, the construction of the will is doubtful, the
court acts on the presumption that the testator did not intend to die either wholly or even partially
intestate, provided that on a fair and reasonable construction there is no ground for a contrary
conclusion.
I am of the opinion, so already expressed, that the construction of this will is doubtful. The very fact a
that a person sets about making his last will and testament may be used as inferring his intention thereby
of disposing of the whole of his estate and effects. This is expressed by Lord Ellenborough C J, in Doe d
Wall v Langlands ((1811), 14 East, 370, 104 ER 644, 44 Digest 565, 3826), and by Sir James Bacon V-C, in
Re Bassetts Estate Perkins v Fladgate (1872), LR 14 Eq 54, 41 LJCh 681, sub nom Re Bassetts Estate,
Parkins v Fladgate, 20 WR 589). In the case of Re Harrison, Turner v Hellard ((1885), 30 ChD 390, 55 LJ
Ch 799, 53, LT 799, 34 WR 420, CA, 44 Digest 550, 3684) in the Court of Appeal, Lord Esher M R, in his
judgment (30 Ch D at pp 393 and 394) deals with the inference to be drawn from the fact that a person has
gone through the form of making a will, and is reported to have said as follows:
There is one rule of construction, which to my mind is a golden rule, viz, that when a testator has
executed a will in solemn form you must assume that he did not intend to make it a solemn farcethat
he did not intend to die intestate when he has gone through the form of making a will. You ought, if
possible, to read the will so as to lead to a testacy, not an intestacy. This is a golden rule.
In Re Messengers Estate, Chaplin v Ruane ([1937] 1 All ER 355, 81 Sol Jo 138) Clauson J ([1937] 1 All ER
at p 356) says:
In my view it is quite plain that the testator desired to make an effective will, and in that connection
I need only refer to the observations of Lord Esher M R, in the case of Re Harrison, Turner v Hellard
((1885), 30 ChD 390, 55 LJ Ch 799, 53, LT 799, 34 WR 420, CA, 44 Digest 550, 3684), where he says
(30 Ch D at p 393). . .

315
and here the learned judge quotes part of the judgment of Lord Esher, M R, as set out above herein.
This inference of intention should not be drawn where from the words of the will the testator clearly
intended to die intestate, wholly or partially, or where on a fair and reasonable construction of a doubtful will
there appears ground for a contrary conclusion.
While it is possible to hold that by the residuary clause in question the testatrix has given the
undisposed-of portion of the proceeds of sale of Harbour View alone, I do not think that such a conclusion
would be well grounded. In my opinion, although the clause is ambiguous, the better view is that this is a gift
of the general residue of the testatrixs estate. I have come to this conclusion for the following reasons. On

a grammatical construction of the whole will, the clause is not clearly framed in such a position as to relate to
specific property, and at the same time it is in such a position that it may reasonably be held to relate to the
general residue, in accordance with the general rule, as laid down by Malins V-C, in Jull v jacobs ((1876), 3
ChD 703, 35 LT 153, 24 WR 947, 44 Digest 277, 1104) above. For this court so to hold the presumption
against intestacy, whole or partial, would be made, in keeping with the inference to be drawn from the fact
that this testatrix went through the form of making a will, described by Lord Eaher M R, in Re Harrison,
Turner v Hellard ((1885), 30 ChD 390, 55 LJ Ch 799, 53, LT 799, 34 WR 420, CA, 44 Digest 550, 3684),
above, as the golden rule.
This court therefore leans against intestacy, and construes the clause in question as a gift of the general
residue of the testatrixs estate.
The answers to the three questions set out in the originating summons are as follows:
1. No part of the estate is distributable as upon an intestacy.
2. The testatrixs whole residuary estate is included in and covered by the following gift: & the
residue equally to my two nieces Mary Lilian Agnes Morris and Anne E Morris.
3. This does not arise.
On the question of costs I think that in this matter the costs of all parties as between solicitor and client
should be paid out of the estate and I order accordingly.
Direction accordingly.

(1959) 1 WIR 316

Re Collymore Leacock And Another v Connell And Others

SUPREME COURT OF BARBADOSCIVIL JURISDICTION
STOBY C J
4, 26 JUNE 1959

Charitable trust Advancement of education Intention to benefit white Barbadian boys Public policy.
The testator after making provision for the establishment of a Scholarship Fund and appointing certain
persons to be the Scholarship Trustees of that fund directed the Scholarship Trustees:
(i) to apply a sum not exceeding 360 per annum in establishing and maintaining studentships at Harrison
College each of the annual value of 20 to be from time to time awarded in manner hereinafter directed to
white boys whose parents are natives of or one of whose parents is a native of this Island and the joint
income of whose parents does not exceed 200 per annum;
(ii) to apply a sum not exceeding 1,250 per annum in establishing and maintaining five scholarships each of
the annual value of 250 to 316 be awarded in manner hereinafter directed to boys whose parents are
natives of or one of whose parents is a native of this Island and which boys have for a period of three years
immediately preceding the award been receiving their education in this Island;
(iii) to apply a sum not exceeding 270 in establishing and maintaining studentships at The Combermere
School each of the annual value of 15 to be from time to time awarded in manner hereinafter directed to
white boys whose parents are natives of or one of whose parents is a native of this Island.
There are other conditions attached to the award of these Scholarships but they do not affect the decision in
this matter.
An originating summons was taken out by the present trustees of the said will and codicils thereto citing all
persons interested under the will, etc, to determine the following questions:
(a) Whether the trusts contained in the said Will with regard to that portion of the trust funds designated
therein The Scholarship Fund are valid and subsisting trusts,

(b) Whether the said Gay Lisle Mandeville and Charles Alan Burton are the persons competent to receive
and administer the Scholarship Fund,
(c) Whether the Plaintiffs and or the Defendants the said Gay Lisle Griffith Mandeville and Charles Alan
Burton the Scholarship Trustees should not do, consent to, or take any part in, any act, deed or matter with
the object of altering the trusts on which the Scholarship Fund is to be held or to save such trusts.
Held: (i) that the trusts contained in the Will with regard to that portion of the trust funds designated therein
The Scholarship Fund are valid and satisfactory trusts;
(ii) that the Right Reverend Gay Lisle Mandeville and the Attorney-General Charles Alan Burton are the
persons competent to receive and administer the Scholarship Fund, and that either could refuse to accept
the trust.
Direction accordingly.
Cases referred to
National Anti-Vivisection Society v IR Comrs [1947] 2 All ER 217, [1948] AC 31, [1947] LJR 1112, 177 LT
226, 63 TLR 424, sub nom IR Comrs v National Anti-Vivisection Society, 28 Tax Cas 311, HL, 2nd
Digest Supp
Oppenheim v Tobacco Securities Trust Co, Ltd [1951] 1 All ER 31, [1951] AC 297, [1951] 1 TLR 118, HL,
2nd Digest Supp
Clayton v Ramsden [1943] 1 All ER 16, [1943] AC 320, 112 LJ Ch 22, 168, LT 113, 59 TLR 75, 86 Sol Jo
384, HL, 2nd Digest Supp
Re Wolffes Will Trusts, Shapley v Wolffe, [1953] 2 All ER 697, 97 Sol Jo 539, 3rd Digest Supp
Re Gott, Glazebrook v Leeds University, [1944] 1 All ER 293, [1944] Ch, 193, 113 LJ Ch 124, 170 LT 210, 60
TLR 214, 88 Sol Jo 103, 2nd Digest Supp
Re Goldschmidt, Commercial Union Assurance Co, Ltd v Central British Fund for Jewish Relief and
Rehabilitation [1957] 1 All ER 513, 101 Sol Jo 285
Weir v Crum-Brown [1908] AC 162, 77 LJPC 41, 98 LT 325, 24 TLR 308, 52 Sol Jo 261, HL, 8 Digest (Repl)
390, 833

317
Action
Action by originating summons.
Malcolm Butt Q C and J S B Dear (instructed by Cottle Catford & Co) for the plaintiff
H B St John (instructed by Carrington & Sealy ) for the trustees of the will
H A Williams for (instructed by Hutchinson & Banfield) one of the Scholarship trustees
The Attorney-General (instructed by Queens Solicitor (for the Attorney-General)
STOBY CJ. For many years it has been the law that a trust for the advancement of education is a good
charitable trust and is valid even though it creates a perpetuity.
The purpose of the originating summons filed by the plaintiffs Dudley Gordon Leacock and Stanley
Parker Edghill is not to question the correctness of this recognised principle but to seek clarification on the
difficult question regarding the limitations as a donor can impose as a condition for the acceptance of his
charity.
Frederick Alfred Chapman Collymore died in the island of Barbados on 14 February 1929, having made
his last will and testament dated 2 December 1921. The relevant clauses of his will are as follows:
4. Subject to Clause 3 the Scholarship Trustees shall in the second place out of the said income
apply a sum not exceeding Three hundred and sixty pounds per annum in establishing and
maintaining Studentships at Harrison College to be called the Aubrey Collymore Studentships each of
the annual value of Twenty pounds to be from time to time awarded in manner hereinafter directed to
white boys whose parents are natives or one of whose parents is a native of this Island and the joint
income of whose parents does not exceed Two hundred pounds per annum.
5. Three Studentships shall be awarded each year the first three being awarded at the expiration of
six months from the time when the first moneys under this my will shall be paid to the Scholarship
Trustees and each Studentship shall be awarded as the result of such examination and in such
manner and shall be held and enjoyed for such period and upon and subject to such terms and
conditions as shall from time to time be prescribed by the Scholarship Trustees.

6. Sbject to Clauses 3 and 4 hereof the Scholarship Trustees shall out of the said income apply a
sum not exceeding one thousand two hundred and fifty pounds per annum in establishing and
maintaining Five Scholarships to be called the Aubrey Collymore Scholarships each of the annual
value of Two hundred and fifty pounds to be awarded in manner hereinafter directed to boys whose
parents are natives or one of whose parents is a native of this Island and which boys have for the
period of three years immediately preceding the award been receiving their education in this Island
One Scholarship shall be awarded each year and the first Scholarship shall be awarded if in the
opinion of the Scholarship Trustees the Scholarship Funds permit at the expiration of Twelve months
from the time when the first moneys under this my will shall be paid to the Scholarship Trustees but if
such funds do not so permit then as soon thereafter as the Scholarship Trustees see fit.
7. The Scholarships shall be awarded in Science and every holder shall become and during his
tenure thereof remain a Student at some College or School in Great Britain or the British Empire
approved of by the Scholarship Trustees where a thorough course of instruction in pure or applied
science or in medicine and/or surgery can be obtained and every Scholarship shall be awarded as the
result of such examination and shall be held and enjoyed for such period and upon and subject to such
terms and conditions as shall from time to time be prescribed by the Scholarship Trustees and the
Scholarship Trustees may at any time alter or revoke any regulations made in respect of such
Scholarships and make new regulations in place thereof Provided always 318 that if at any time there
shall not be a candidate who shall be of sufficient merit the Trustees shall not be bound to award the
Scholarship.
8. Subject to clauses 3, 4 and 6 hereof the Scholarship Trustees shall out of the said income apply
a sum not exceeding two hundred and seventy pounds per annum in establishing and maintaining
Studentships at The Combermere School to be called the Aubrey Collymore Studentships each of the
annual value of Fifteen pounds to be from time to time awarded in manner hereinafter directed to white
boys whose parents are natives or one of whose parents is a native of this Island and the joint income
of whose parents does not exceed two hundred pounds.
9. Three Studentships shall be awarded each year and the first three shall be awarded when in the
opinion of The Scholarship Trustees the Scholarship Funds permit and the Studentships shall be
awarded as the results of such examination and in such manner and shall be held and enjoyed for
such period and upon and subject to such terms and conditions as shall from time to time be
prescribed by the Scholarship Trustees.
The first question posed by the originating summons is whether the trusts contained in the said will with
regard to that portion of the trust funds designated therein the scholarship fund are valid and subsisting
trusts. The scholarship fund is the fund intended for white Barbadians only.
Counsel for the plaintiffs, the Attorney-General as one of the proposed trustees, counsel for the other
proposed trustee and counsel for those persons who would benefit in the event of the trust not being a good
charitable trust each submitted that the trust was valid but as the matter is one of public importance the court
was asked to give a ruling.
In the absence of any argument expressing disagreement with the view that the trusts referred to above
are valid it seems that I can best resolve this matter by reviewing some of the authorities generally and by
stating the broad principles which ought to be followed.
Counsel for the plaintiffs referred me to National Anti-Vivisection Society v IR Comrs ([1947] 2 All ER
217, [1948] AC 31, [1947] LJR 1112, 177 LT 226, 63 TLR 424, sub nom IR Comrs v National Anti-Vivisection
Society, 28 Tax Cas 311, HL, 2nd Digest Supp) and to Oppenheim v Tobacco Securities Trust Co, Ltd
([1951] 1 All ER 31, [1951] AC 297, [1951] 1 TLR 118, HL, 2nd Digest Supp). In the former Lord Simonds
said this ([1947] 2 All ER at p 233):
I will readily concede, that, if the purpose is within one of the heads of charity forming the first three
classes in the classification which Lord Macnaghten borrowed from Sir Samuel Romillys argument in
Morice v Bishop of Durham, the Court will easily conclude that it is a charitable purpose. But even
here to give the purpose the name of religious or educational is not to conclude the matter. It may
yet not be charitable, if the religious purpose is illegal or the educational purpose is contrary to public
policy. Still there remains the overriding question: Is it pro bono publico?
and in the latter ([1951] AC at p 305):
It is a clearly established principle of the law of charity that a trust is not charitable unless it is
directed to the public benefit. This is sometimes stated in the proposition that it must benefit the
community or a section of the community. Negatively it is said that a trust is not charitable if it confers
only private benefits.

No one reading the testators will can come to any other conclusion but that his intention was to benefit
Barbadian youth as a whole but divided into two groups, namely white Barbadian boys and Barbadian boys
whether white or coloured. Can it be said that his intention to ensure that the white section of the community
obtained a benefit not available to the coloured section satisfies the test of public benefit? There was no
evidence as to the number of white families or white boys in Barbados but as the proposed trustees and the
defendants did not dispute the validity of the trust I am prepared to assume that

319
they comprise a reasonable proportion of the population. Number of course is not the decisive factor. A
trust good on the face of it might fail if the persons to be benefited are so negligible that it might be regarded
as a private trust and not a public one. On the other hand, although a great number of people might benefit,
a trust would still fail if those to be benefited depend on their relationship to an individual and not on
membership of a class.
History records that Barbados was settled by English people, a white race, in the year 1627. The
original inhabitants were Arawaks of South America who gradually disappeared from the island. The negro
race was introduced into Barbados in the persons of slaves with the result that with the passage of time and
the frailty of man many a white family became diluted. But notwithstanding this human development the fact
remains that for over 300 years white families have lived and prospered in this island so that
ethnographically there exist two racial groups, white and non-white. It may be that the racial barriers of the
past erected through economic necessity and ignorance of the age no longer exist and no one nowadays
would wish to approve of any distinction based on race. But whether it is desirable or undesirable to focus
attention on racial problems is not what this court is called upon to decide. The issue for discussion is
whether white families can be found in Barbados and whether they are an appreciably important class of the
communityimportant not in a social or financial sense but in a numerical sense. The foregoing
observations of how white settlers came to the island and the tacit admission of all parties to these
proceedings that white persons are still an identifiable class cause me to hold that there are white Barbadian
natives in sufficient numbers to be ranked as a section of the community. There still remains for
consideration whether scholarships of the kind envisaged by the donor would be for the benefit of this class.
Normally no one would doubt that educational scholarships are for the public benefit. It is when these
gifts are brought within the narrow confines of a race group that the excluded groups are tempted to
question not the motive for the gift but whether the benefits it will bestow are public benefits within the
meaning of the law.
The testator limited the award to the sons of parents whose income did not exceed 200 per annum. It
is common knowledge that racial intolerance is greatest among the poor and uneducated. While the
testators motives will avail him nothing if the gift does not satisfy the legal requirements for the fulfilment of
a charitable trust yet who can doubt that his racial views were charitable when he showed concern for the
education of white boys whose parents through financial stringency might be unable to provide them with a
secondary education. He realised no doubt that in open competition with boys of wealthier parents
irrespective of race their chances of education would be slender and with their failure to be educated they
would lose the opportunity of comradeship and association with their fellow Barbadians. If this view is right
and it is one which appeals to me then there is ample ground for holding that the trust is for the benefit of a
section of the community.
Counsel for the plaintiffs addressed me on another aspect. He conceded that difficulty might arise in
deciding who is or who is not white but submitted that uncertainty in the way in which a trust is to be carried
out does not result in failure of the trust. He referred me to Clayton v Ramsden ([1943] 1 All ER 16, [1943]
AC 320, 112 LJ Ch 22, 168, LT 113, 59 TLR 75, 86 Sol Jo 384, HL, 2nd Digest Supp).
Clayton v Ramsden ([1943] 1 All ER 16, [1943] AC 320, 112 LJ Ch 22, 168, LT 113, 59 TLR 75, 86 Sol
Jo 384, HL, 2nd Digest Supp) was concerned with a testators will containing a forfeiture clause if his
daughter married a person who is not of Jewish parentage and of Jewish faith. The House of Lords held
that the words of Jewish parentage were uncertain because they did not show how many ancestors of the
husband were to be of the Jewish race. Lord Russell Of Killowen said ([1943] 1 All ER at p 19):

320
Must both parents be of the Jewish race, or would one alone, and which, suffice? I confess myself
unable to find any context which provides an answer; but the answer may well be that, in the absence
of a context to the contrary, the true construction is that both parents must be of the Jewish race. But
at this point the real difficulty begins, viz, the question of degree. The testator has given no information
or clue as to what percentage or proportion of Jewish blood in the husband will satisfy the requirement
that he should be of Jewish parentage. The daughter could never, before marrying the man of her
choice, be certain that he came up to the requisite standard of Jewish parentage, nor could a court
enlighten her beforehand. The standard is unknown, and incapable of ascertainment. It is this
uncertainty of degree which prevents the divesting event from being seen precisely and distinctly from
the beginning, and which makes this condition void for uncertainty. The uncertainty attaching to the

requirement of Jewish parentage avoids the whole condition subsequent, with the result that no
defeasance takes place.
In the light of that authority counsel conceded that the words in the donors will white boys whose
parents are natives or one of whose parents is a native of this Island were uncertain. He submitted that a
charitable trust does not fail for uncertainty and consequently any doubt created by the use of the words
white boys could be resolved by the trustees deciding who are white or by the trustees submitting a
scheme to the court to determine the manner in which the scholarships should be awarded.
Counsel for the other parties did not contest this proposition but nevertheless a possible argument
which has occurred to me has been considered. It might have been said that if the words white boys whose
parents are natives of this Island are uncertain then the trust fails as it is not only the manner in which the
trust ought to be carried out which is uncertain, but the community which it was intended to benefit is nonexistent because of its uncertainty.
These reflections necessitate a restatement of some general principles. A condition of defeasance on
an estate or interest by way of condition subsequent fails if the condition is uncertain but the gift remains; the
legatee can take the benefit without complying with the condition. In the case of a condition precedent the
condition cannot be rejected as the legatee cannot take without performing the condition. If the condition is
impossible then the gift is void and the legatee cannot take. See Re Wolffes Will Trusts ([1953] 2 All ER
697, 97 Sol Jo 539, 3rd Digest Supp). Had the testator left a sum of money to the Headmaster of Harrison
College to give to white boys the gift might have been void.
This is not the principle which applies to a charitable trust. The law is stated as follows in 4 Halsburys
Laws (3rd Edn) at p 275:
Where a clear charitable intention is expressed it is never allowed to fail on account of the
uncertainty or impracticability of the object.
The case of Re Gott, Glazebrook v Leeds University ([1944] 1 All ER 293, [1944] Ch, 193, 113 LJ Ch
124, 170 LT 210, 60 TLR 214, 88 Sol Jo 103, 2nd Digest Supp) illustrates the rule, The testatrix bequeathed
to the Council of the University of Leeds a certain sum of money upon trust to utilise the income for the
creation of scholarships for the benefit of male students of British and Christian parentage. It was held that
the words of British and Christian parentage had no certain meaning but as the gift was for a charitable
purpose it would not fail for uncertainty. Uthwatt J, said ([1944] 1 All ER at p 294):
No doubt, when a purpose is stated, no charitable trust is created unless the purpose is certainly
charitable, but given that certainty, uncertainty as to the particular charitable purpose intended is, in my
opinion, immaterial.
This case can be contrasted with Re Goldschmidt, Commercial Union Assurance Co, Ltd v Central
British Fund for Jewish Relief and Rehabilitation ([1957] 1 All ER 513, 101 Sol Jo 285). By her will a testatrix
gave specific and pecuniary legacies to various

321
friends and servants and various sums in trust for several charitable bodies and finally a cheque of
5,000 to a hospital. One of the charities was a Fund for the relief of distressed German Jews in England.
No such fund was identifiable. Harman, J, held that, having regard to the fact that the bequest to the fund
for distressed German Jews was one of several bequest to charitable institutions which were clearly
identified, the testatrix intended to benefit a particular institution and not a special object or purpose and as
the institution was not identifiable the gift failed, and the sum went to the residuary legatee.
The statement that a charitable trust does not fail for uncertainty is easy to repeat but the application of
the principle, as Re Goldschmidt Commercial Union Assurance Co, Ltd v Central British Fund for Jewish
Relief and Rehabilitation [1957] 1 All ER 513, 101 Sol Jo 285) shows, is often a matter of some difficulty. In
order to resolve the problem the court is entitled to look at the will as a whole and decide whether the
testator had a general charitable intention. By his will the testator made bequests to his wife, relatives and
friends and then went on in the event of certain things happening to make provision for a scholarship fund.
Clearly the special purpose in founding scholarships was the advancement of education. The question to
whom the scholarships are to be awarded is of secondary importance. The main object is education.
Therein lies the distinction between the will which had to be interpreted in Re Goldschmidt Commercial
Union Assurance Co, Ltd v Central British Fund for Jewish Relief and Rehabilitation [1957] 1 All ER 513, 101
Sol Jo 285) and the testators will. In Re Goldschmidt Commercial Union Assurance Co, Ltd v Central
British Fund for Jewish Relief and Rehabilitation [1957] 1 All ER 513, 101 Sol Jo 285) the charity was to a
particular thing which did not exist, while the testator here wishes to benefit a whole race which exists but it
is uncertain what tests should be applied in order to determine who shall gain admission.

Everyone agrees that there are white boys in Barbados. Once that is admitted then there is a class to
be benefited and who those white persons are can be decided when an appropriate scheme is submitted to
the court. This reasoning no doubt commended itself to counsel for the other parties and induced them
rightly I think not to argue a point which they all conceived was unsound. I deal with it in my judgment as the
matter is one of public importance and I would not wish it to be thought that the point was overlooked.
Finally on this aspect it was submitted that the testator had himself left the decision to the trustees to
determine who were white. Counsel relied on the words in such manner in clauses 5 and 9 and the
absence of those words in clauses 6 and 7. Clauses 5 and 9 deal with scholarships to white boys so it was
contended that when the testator said each scholarship shall be awarded as the result of such examination
and in such manner and subject to such terms as shall from time to time be prescribed by the trustees he
was leaving it to the trustees to decide who was a white boy.
I do not agree with the submission. The testator has not indicated in his will the type of examination he
wished the white boys to take in order to qualify for a scholarship. In my view when he said that a
scholarship should be awarded as the result of such examination and in such manner he was leaving it to
the trustees to settle the details of the examination, the subjects to be taken, the age of the boys, the period
for which the scholarship should last and the conditions in which it might be forfeited. He was not thinking of
race at all. In the testators view white meant white. He could not prophesy that twenty-two years after
making his will the House of Lords would have had the opportunity of clarifying the law on the subject of
racial limitations. As Harman J, said in Re Wolffes Will Trusts Shapley v Wolffe, [1953] 2 All ER 697, 97 Sol
Jo 539, 3rd Digest Supp): No testator would ever guess that one cannot marry a Jew in the eyes of the
law. Similarly I think the testator never contemplated that when he referred to a white boy difficulties would
arise about the degree of a persons whiteness. If such thoughts were not in his mind then the words in the
will in such manner were not inserted for the purpose contended but for some other purpose.
The omission of the words in such manner in clauses 6 and 9 is of no great significance. It is due to
the fact that the testator specified the type of scholarship he had in mind when he referred to the open
scholarships.

322
In the absence of a provision directing the trustees to decide who are white boys it will be their duty to
submit a scheme to the court for approval. It is not necessary in this judgment to suggest how such a
scheme could be formulated but at the moment I can see no insuperable difficulty in devising a suitable test
to which applicants who assert they are white must subscribe.
In Re Wolffes Will Trusts Shapley v Wolffe, [1953] 2 All ER 697, 97 Sol Jo 539, 3rd Digest Supp),
Harman J, pointed out that those who select scholars for Jewish charitable scholarships have no difficulty at
all. In Weir v Crum-Brown ([1908] AC 162, 77 LJPC 41, 98 LT 325, 24 TLR 308, 52 Sol Jo 261, HL, 8 Digest
(Repl) 390, 833), a testator directed his trustees to employ the residue of his estate in instituting a scheme
for the relief of indigent bachelors and widowers of whatever religious denomination or belief they may be
who have shown practical sympathy in the pursuits of science and whose lives have been characterised by
sobriety morality and industry. Lord Loreburn LC, in dismissing an appeal against a decision that the trust
was not void for uncertainty, said, I am satisfied that the trustees or, failing them, the court would find no
difficulty in giving effect to the bequest.
In the result I hold that the trusts contained in the will with regard to that portion of the trust funds
designated therein the scholarship fund are valid and satisfactory trusts.
With regard to the second question for the reasons stated during the argument I hold that the Right
Reverend Gay Lisle Griffith Mandeville and the Attorney-General Charles Allan Burton are the persons
competent to receive and administer the scholarship fund. Either can of course refuse to accept the trust.
The other questions in the summons do not arise.
Direction accordingly.

(1959) 1 WIR 323

Bookers Central Services Ltd v Inland Revenue Commissioners

SUPREME COURT OF BRITISH GUIANAFULL COURT OF APPEAL
HOLDER C J, STOBY AND PHILLIPS JJ
25, 26, 29 SEPTEMBER, 13 DECEMBER 1958 DELIVERED 2 SEPTEMBER 1959

Income Tax Deduction in computing chargeable income Expenses wholly and exclusively incurred . . .
in the production of the income Uncollectible loans made to employees of taxpayer company not
deductible Income tax Ordinance, Cap 299 [BG], ss 12 (1) and 14 (b).

The taxpayer, a company incorporated in British Guiana, was assessed in respect of its profits from
management services for the year ending 31 December 1953 (year of assessment 1954), and claimed to
deduct the sum of $134.50 therefrom in respect of uncollectible loans made to certain of its employees
during that year as being expenses wholly and exclusively incurred during the year immediately preceding
the year of assessment by the company in the production of its income.
Held: the amount sought to be deducted was not an expense wholly and exclusively incurred in the
production of the taxpayers income and was therefore not deductible for the purpose of ascertaining the
chargeable income of the taxpayer.

323
Appeal dismissed.
Cases referred to
Smith v Incorporated Council of Law Reporting for England & Wales [1914] 3 K B 674, 83 LJKB 1721, 111
LT 848, 30 TLR 588, 6 Tax Cas 477, 28 Digest 52, 262
Hancock v General Reversionary & Investment Co, Ltd [1919] 1 KB 25, 88 LJKB 248, 119 LT 737, 35 TLR
11, sub nom Hancock v General Reversionary & Investment Co, Ltd, General Reversionary &
Investment Co, Ltd v Hancock, 7 Tax Cas 358, 28 Digest (Repl) 129, 491
Mitchell v Noble (BW), Ltd [1927] 1 KB 719, 96 LJKB 484, 137 LT 33, 43 TLR 245, 71 Sol Jo 175, sub nom
Noble (BW), Ltd v Mitchell, Mitchell v Noble (BW), Ltd, 11 Tax Cas 372, CA, Digest Supp
W Nevill & Co, Ltd v Federal Comr of Taxation (1937), 56 CLR 290
Morgan v Tate & Lyle, Ltd [1954] 2 All E R 413, [1955] A C 21, 98 Sol Jo 422, 35 Tax Cas 367, HL, 3rd
Digest Supp
British Insulated & Helsby Cables v Atherton [1926] AC 205, 95 LJKB 336, 134 LT 289, 42 TLR 187, HL, affg
sc sub nom Atherton v British Insulated & Helsby Cables, Ltd [1925] 1 KB 421, CA, 28 Digest 52, 264
Hagart & Burn-Murdoch v IR Comrs [1929] AC 386, 98 LJPC 113, 141 LT 97, 45 TLR 338, sub nom IR
Comrs v Hagart & Burn-Murdoch, 14 Tax Cas 433, HL, 28 Digest (Repl) 88, 332
Absalom v Talbot [1944] 1 All E R 642, [1944] AC 204 113 LJ Ch 369, 171 LT 53, 60 TLR 434, 88 Sol Jo
203, 26 Tax Cas 166, 188, HL, 28 Digest (Repl) 53, 204
Reids Brewery Co v Male [1891] 2 QB 1, 60 LJQB 340, 64 LT 294, 55 JP 216, 39 WR 459, 7 TLR 278, 3
Tax Cas 279, DC, 28 Digest (Repl) 77, 291
Curtis v Oldfield (J&G), Ltd (1925), 94 LJKB 655, 133 LT 299, 41 TLR 373, 9 Tax Cas 319, 28 Digest (Repl)
127, 482
Strong & Co, Ltd v Woodifield [1906] AC 448, 75 LJKB 864, 95 LT 241, 22 TLR 754, 50 Sol Jo 666, 5 Tax
Cas 215, HL, 28 Digest (Repl) 79, 298
Ushers Wiltshire Brewery, Ltd v Bruce [1915] AC 433, 84 LJKB 417, 112 LT 651, 31 TLR 104, 6 Tax Cas
399, HL, revsg [1914] 2 KB 891, CA, 28 Digest (Repl) 77, 293
Ward & Co, Ltd v Taxes Comr [1923] AC 145, 28 Digest (Repl) 105, *277
Racecourse Betting Control Board v Young (Inspector of Taxes), Racecourse Betting Control Board v IR
Comrs, Young (Inspector of Taxes) v Racecourse Betting Control Board, IR Comrs v Racecourse
Betting Control Board [1958] 2 All ER 385, 28 Digest (Repl) 101, 401
Appeal
Appeal by the taxpayer by way of case stated from the judgment of the Supreme Court of British Guiana
(Trial DivisionLuckhoo J) dated 26 April 1958, whereby it was decided that uncollectible loans made to
employees of the taxpayer are not expenses wholly and exclusively incurred by the taxpayer in the
production of the income and are therefore not deductible in ascertaining the chargeable income of the
taxpayer. The facts appear in the judgment of the court.
J H S Elliott (instructed by H C B Humphrys) for the appellants
G M Farnum (instructed by P M Burch-Smith) Solicitor-General for the respondents
PHILLIPS J delivered the judgment of the court: The special case stated 324 pursuant to s 57 of
the Income Tax Ordinance, Cap 299 [BG], on appeal before the judge in chambers is as follows:
1. The appellants, Bookers Central Services, Ltd, appealed against an assessment to income tax in
the sum of $5,997.16 for the year ending 31 December 1953.
2. The said assessment was made under the provisions of the Income Tax Ordinance, Cap 299
[BG], in respect of the appellants profits from management services.
3. The appellants are a company incorporated in this Colony whose registered office is situate at
Lots 49/50, Water Street, Georgetown.

4. On 22 July 1954, the appellants submitted an income tax return and profit and loss account in
respect of their income for the year ending 31 December 1953.
5. In the said return the appellants claimed to deduct for income tax purposes the sum of $155.25
in respect of bad debts written off in the profit and loss account, of which the sum of $134.50 was in
respect of uncollectible loans made to employees of the appellants.
6. On 17 November 1955, the respondent computed the appellants income tax liability, and in his
said computation disallowed the said deduction as to $134.50 for bad debts arising out of loans to
employees.
7. On 25 January 1956, the appellants objected to the respondents assessment on the grounds
that in the said computation of chargeable income no deduction was allowed for bad debts arising from
loans to staff, $134.50, and that such bad debts were a proper charge against profits.
8. On 17 February 1956, the Commissioners heard the said objection, and on 28 February 1956,
they maintained the said assessment.
9. At the hearing it was proved or admitted that the said sum of $134.50 formed part of moneys
which had been lent to employees of the appellants and that the said loans of $134.50 became
uncollectible during the year immediately preceding the year of assessment.
10. It was contended on behalf of the appellants that:
(a) the said sum of $134.50 was a proper deduction in computing the appellants gains and profits
under the Ordinance;
(b) the said sum was an outgoing or expense wholly and exclusively incurred during the year
immediately preceding the year of assessment by the appellants in the production of their income;
(c) the said sum was a bad debt incurred in the appellants trade or business;
(d) the said sum was not a prohibited deduction under the provisions of s 14 of the Income Tax
Ordinance, Cap 299 [BG].
11. It was contended on behalf of the respondent that:
(a) the said sum of $134.50 was not a proper deduction in computing the appellants gains or
profits under the Ordinance;
(b) the said sum was not an outgoing or expense wholly and exclusively incurred in the production
of the appellants income;
(c) the said sum was not a bad debt incurred in the appellants trade or business deductible under
the provisions of s 12 (1) (e) of the Income Tax Ordinance, Cap 299 [BG];
(d) the said sum was a prohibited deduction under the provisions of s 14 (b) of the Income Tax
Ordinance, Cap 299 [BG].
12. It was not contended on behalf of the appellants that the debt claimed as bad was a trading
debt.
13. On 26 April 1958, the judge in chambers dismissed the appellants appeal and confirmed the
assessment.
14. On 17 May 1958, the appellants, being dissatisfied with the decision, 325applied to the judge
in chambers, to state a case on a question of law for the consideration of the Full Court as to whether
or not, in ascertaining the chargeable income of the appellants the said sum of $134.50 is deductible
as:
(a) an outgoing or expense wholly and exclusively incurred during the year immediately preceding
the year of assessment by the appellants in the production of their income; or
(b) a bad debt incurred in the appellants trade or business and deductible under the provisions of s
12 of the Income Tax Ordinance [BG].
It was admitted that there was no direct authority on the issue involved in this appeal.
Counsel for the appellants submitted that where a company makes loans to assist its employees and
these loans are not repaid and become uncollectible they ought to be regarded as an expense of the
company which may be deducted for the purpose of income tax under s 12 of the Income Tax Ordinance,
Cap 299 [BG]not as trading debts under paragraph (e) of s 12 (1)but under the general provisions in the
opening words of s 12.
Section 12 enacts as follows:
(1) For the purpose of ascertaining the chargeable income of any person there shall be deducted
all outgoings and expenses wholly and exclusively incurred during the year immediately preceding the
year of assessment by that person in the production of the income, including
****
(e) bad debts incurred in any trade, business, profession or vocation, proved to the satisfaction of
the Commissioner to have become bad during the year immediately preceding the year of assessment
and doubtful debts to the extent that they are respectively estimated to the satisfaction of the

Commissioner to have become bad during that year notwithstanding that the bad or doubtful debts
were due and payable prior to the commencement of the year, provided that all sums recovered during
that year on account of amounts previously written off or allowed in respect of bad or doubtful debts be
treated for the purposes of this Ordinance as receipts of the trade, business, profession of vocation for
that year;
Section 14 of the Ordinance enacts as follows:
For the purpose of ascertaining the chargeable income of any person no deduction shall be
allowed in respect of:
****
(b) any disbursement or expenses not being money wholly and exclusively laid out or expended for
the purpose of acquiring the income;
He further submitted:
(1) That bad debts are specifically made deductible by paragraph (e) of s 12 (1) of the Income Tax
Ordinance [BG], provided they are trading debts, and that though this debt was admittedly not a
trading debt it can be said that this uncollectible loan is a bad debt within the opening words of s 12 as
expenses wholly and exclusively incurred in the production of the income.
(2) that moneys lent to employees to promote good staff relationships (as admitted in this case) are
expenses wholly and exclusively incurred in the production of the incomethat if a company can
make presents of sums of moneys which are deductible expenses for the purposes of income tax, a
fortiori, if instead of giving, it lends the money it should be entitled to deduct the sums loaned, if the
object was to promote good staff relationshipsthat they are indistinguishable because the principle is
always the same. (Smith v Incorporated Council of Law Reporting for England & Wales [1914] 3 K B
674, 83 LJKB 1721, 111 LT 848, 30 TLR 588, 6 Tax Cas 477, 28 Digest 52, 262); Hancock v General
Reversionary and Investment Co, Ltd ([1919] 1 KB 25, 88 LJKB 248, 119 LT 737, 35 TLR 11, sub nom
Hancock v General Reversionary & Investment Co, Ltd, General Reversionary & Investment Co, Ltd v
Hancock, 7 Tax Cas 358, 28 Digest (Repl) 129, 491); Mitchell v Noble, Ltd ([1927] 1 KB 719, 96 LJKB
484, 137 LT 33, 43 TLR 245, 71 Sol Jo 175, sub nom Noble (BW), Ltd v Mitchell, Mitchell v Noble
(BW), Ltd, 11 Tax Cas 372, CA, Digest Supp).

326
(3) That the Commissioners mistake was that because the loan was not a trading debt and
therefore not within paragraph (e) it was not deductible.
(4) That the remedy is for the Commissioner to make an additional assessment on the employee of
such a bad debt and that the company should have made a return to the Commissioner of the amount
of loan when written off as a payment or allowance made to the employee and the employee would on
that be liable to pay income tax.
(5) That the phrases (a) wholly and exclusively laid out and expended for the purposes of the
trade in the English Act (Rule 3 (a) of the Rules applicable to Schedule D, Cases I and II); (b) wholly
and exclusively incurred in the production of the Income in the local Ordinance, s 12; (c) not
exclusively incurred in the production of the assessable income in the Income Tax Act, 1916 [New
Zealand], s 86 (1); and (d) laid out or expended for the purposes of earning income in the Income
War Tax Act, 1927 [Canada], s 6 (1) (a), are in substance the samethat the legislatures intended in
each case to allow legitimate business expensesthat the court should look to the substance of the
matter and be guided by realistic commercial considerations and that the real test is was the
expenditure laid out in profit earning?
(6) And, finally, even though there is a difference in language between the local Ordinance and the
English Act nevertheless the words in the production of the income must be interpreted as in the
course of and that in any view a reasonable expenditure to promote good staff relationship is an
expenditure in the production of or in the course of the production of the income.
(7) That Hannan on Principles of Income Taxation at Chapters 23 and 24 gives the right approach
to this problemthat an expenditure incurred in gaining or producing the assessable income is satisfied
if the expenditure was made in the given year or accounting period and is incidental and relevant to the
operations or activities regularly carried on for the production of the income. (W Nevill and Co, Ltd v
Federal Comr of Taxation ((1937), 56 CLR 290) (56 CLR at pp 305-306 per Dixon J).)
(8) That in the case of Morgan v Tate & Lyle, Ltd ([1954] 2 All E R 413, [1955] A C 21, 98 Sol Jo
422, 35 Tax Cas 367, HL, 3rd Digest Supp), in his submission, the decision of the minority is to be
preferred.

Counsel for the appellants in his argument sought to contrast and compare the English decisions on this
subject, which he divided into three categories, and reviewed the relevant authorities. The first category he
dealt with was where the expense was disallowed because although properly incurred for the purposes of
the business they were capital and not income expenses. He reviewed the case of Atherton v British
Insulated & Helsby Cables, Ltd ([1926] AC 205, 95 LJKB 336, 134 LT 289, 42 TLR 187, HL, affg sc sub nom
Atherton v British Insulated & Helsby Cables, Ltd [1925] 1 KB 421, CA, 28 Digest 52, 264).
The second category dealt with was where the expenditure was bad debts within the meaning of
paragraph (e) or nothing at all (Trading Debts). He reviewed Hagart & Burn-Murdoch v IR Comrs ([1929] AC
386, 98 LJPC 113, 141 LT 97, 45 TLR 338, sub nom IR Comrs v Hagart & Burn-Murdoch, 14 Tax Cas 433,
HL, 28 Digest (Repl) 88, 332), Absalom v Talbot ([1944] 1 All E R 642, [1944] AC 204 113 LJ Ch 369, 171 LT
53, 60 TLR 434, 88 Sol Jo 203, 26 Tax Cas 166, 188, HL, 28 Digest (Repl) 53, 204), and Reids Brewery Co
v Male ([1891] 2 QB 1, 60 LJQB 340, 64 LT 294, 55 JP 216, 39 WR 459, 7 TLR 278, 3 Tax Cas 279, DC, 28
Digest (Repl) 77, 291).
The third category dealt with was where the expenditures were irrecoverable depredations of directors
as opposed to ordinary employees. He reviewed the case of Curtis v Oldfield (J & G), Ltd ((1925), 94 LJKB
655, 133 LT 299, 41 TLR 373, 9 Tax Cas 319, 28 Digest (Repl) 127, 482).
Counsel for the appellants further submitted that Hagarts & Burn-Murdoch v IR Comrs case ([1929] AC
386, 98 LJPC 113, 141 LT 97, 45 TLR 338, sub nom IR Comrs v Hagart & Burn-Murdoch, 14 Tax Cas 433,
HL, 28 Digest (Repl) 88, 332) relied on by the Solicitor-General was not the relevant case that should have
been relied on by the judge.
The off-quoted observation of Lord Davey (discussed by the judge) in Strong & Co, Ltd v Woodifield
([1906] AC 448, 75 LJKB 864, 95 LT 241, 22 TLR 754, 50 Sol Jo 666, 5 Tax Cas 215, HL, 28 Digest (Repl)
79, 298) is still the guiding light for the purposes of construction of these sections ([1906] AC at p 458).
These words are used in other rules, and appear to me to mean for the purpose of enabling a
person to carry on and earn profits in the trade, etc. 327I think the disbursements permitted are such
as are made for that purpose. It is not enough that the disbursement is made in the course of, or
arises out of, or is connected with, the trade, or is made out of the profits of the trade. It must be made
for the purpose of earning the profits.
In Morgan v Tate and Lyle, Ltd ([1954] 2 All E R 413, [1955] A C 21, 98 Sol Jo 422, 35 Tax Cas 367, HL, 3rd
Digest Supp), Lord Daveys observations were more fully explained but they have never been overruled.
Each case has to be decided upon its own facts. We have read and examined all the authorities
presented to us and in no case were the facts identical with the facts in the present case.
The judge in his decision concluded as follows:
On a consideration of the facts of this case and applying Lord Caves statement of the principle in
Athertons case ([1926] AC 205, 95 LJKB 336, 134 LT 289, 42 TLR 187, HL, affg sc sub nom Atherton
v British Insulated & Helsby Cables, Ltd [1925] 1 KB 421, CA, 28 Digest 52, 264), I am of the opinion
that the making of loans by the company to its employees is not in the circumstances of this case
consistent with any interest of the company in relation to the production of its income and any loss
occasioned thereby is not an outgoing or expense wholly and exclusively incurred by the company in
the production of its income.
In Atherton v British Insulated & Helsby Cables, Ltd ([1926] AC 205, 95 LJKB 336, 134 LT 289, 42 TLR
187, HL, affg sc sub nom Atherton v British Insulated & Helsby Cables, Ltd [1925] 1 KB 421, CA, 28 Digest
52, 264) ((1925), 10 TC at p 191) Lord Cave said:
It was made clear in the above cited cases of Ushers Wiltshire Brewery, Ltd v Bruce ([1915] AC
433, 84 LJKB 417, 112 LT 651, 31 TLR 104, 6 Tax Cas 399, HL, revsg [1914] 2 KB 891, CA, 28 Digest
(Repl) 77, 293) and Smith v Incorporated Council of Law Reporting for England and Wales ([1914] 3 K
B 674, 83 LJKB 1721, 111 LT 848, 30 TLR 588, 6 Tax Cas 477, 28 Digest 52, 262), that a sum of
money expended, not of necessity and with a view to a direct and immediate benefit to the trade, but
voluntarily and on the grounds of commercial expediency, and in order indirectly to facilitate the
carrying on of the business, may yet be expended wholly and exclusively for the purposes of the
trade . . . They found . . . that the payment was made for the sound commercial purpose of
enabling the company to retain the services of existing and future members of their staff and of
increasing the efficiency of the staff . . .
The Solicitor-General submitted that the appellants argument had proceeded on the line that the
employer has spent money which might produce income, that it was not known whether it produced any at
all but merely because it was spent in a pious hope of increasing the income it was therefore deductible,

which argument he urged was not acceptable. He said that a gift to an employee is not deductible unless
exclusively laid out for the production of the income which was in each case a question of fact. He urged
that a loan could not be converted to a gift and that it was for the Commissioner to find as a fact whether it
was a bad debt in all the circumstances, and that a sum does not become irrecoverable so as to be a bad
debt because the employer decides not to pursue his remedy or seek to recover it. He finally urged that the
relevant sections of the Income Tax Act [NZ] and the local Ordinance were almost identical and submitted
that the court ought to follow the reasoning in Ward & Co, Ltd v Taxes Comr ([1923] AC 145, 28 Digest
(Repl) 105, *277). In that case Viscount Cave said ([1923] AC at pp 149 and 150):
The expense may have been wisely undertaken and may properly find a place either in the
balance sheet or in the profit and loss account of the appellants; but this is not enough to take it out of
the prohibition in s 86 (1) of the Act. For that purpose it must have been incurred for the direct purpose
of producing profits.
We would wish however to refer to the case of Racecourse Betting Control Board v Young (Inspector of
Taxes), Racecourse Betting Control Board v I R Comrs, Young (Inspector of Taxes) v Racecourse Betting
Control Board, IR Comrs v Racecourse Betting Control Board [1958] 2 All ER 385, 28 Digest (Repl) 101,
401. In that case the Racecourse Betting Control Board operated totalisators on approved racecourses
under the provisions of the Racecourse Betting Act, 1928 [UK]. Under that Act the Board caused the
moneys staked, less a certain percentage, to be distributed to the persons placing winning 328 bets and the
percentage deducted was paid into the totalisator fund. This fund was utilised to pay the expenses of the
Board and the surplus was to be applied in accordance with the scheme approved by the Secretary of State
for purposes conducive to the improvement of breeds of horses or the sport of horse-racing. The Board
carried on a trade as a totalisator operator and was assessed to income tax under Schedule D accordingly.
In the years 1953-55 the Board expended certain sums out of the totalisator fund by paying small
amounts to racehorse owners who ran horses at racecourses with which the Board was concerned, by
paying sums to the owners of such racecourses to improve the structures and amenities of those
racecourses, by paying to owners and trainers amounts towards their expenses in transporting racehorses
to those racecourses and by meeting certain expenses of the Jockey Club and the National Hunt
Committee, by paying sums to assist those responsible for discharging the expenses of point-to-point
meetings and, finally, by making payments to assist and encourage racing under the rules of the Pony Turf
Club. These payments were proper payments within the scheme approved by the Secretary of State but it
was claimed unsuccessfully by the Board before Mr Justice Upjohn and the Court of Appeal that the
payments were proper deductions in assessing the profits or gains of their trade as a totalisator operator.
Of the various objects for which the totalisator fund could be applied, the Board had chosen those listed
above with the object of increasing the receipts of its totalisators as, for example, they were calculated to
increase the amount of racing and the number of persons present at the racecourses in question.
Nevertheless, the payments did improve the breed of horses or the sport of horse-racing and were to some
real extent at least made for the purpose of assisting and promoting the interests of racehorse owners. In
other words, the Board applied the surplus moneys for the purposes which Parliament had designated which
were essentially distinct from the business purposes of the Board, but nevertheless selected those purposes
which were most calculated to promote the Boards business interests. The payments therefore amounted
to an application of the profits of the business in a proper manner, but calculated to assist the trade of the
Board. This did not, however, make them expenses of the Board in earning the profits from the trade. It
was also held that the fact that the disbursement is incurred for the benefit of a third party is not a factor
which causes the payment to be disallowable as an expense of the trade, unless such benefit to the third
party is one of the purposes of the payment which is then not wholly and exclusively for the purposes of the
payers trade.
In the instant case the loan to an employee was to some real extent made for the purpose of promoting
the interests of the company in encouraging good staff relationships but not wholly and exclusively for the
purposes of producing, acquiring or earning the profits of the trade.
In our view the payments to qualify as proper deductions must in truth have been laid out exclusively for
the purposes of the trade and not merely with the incidental intention of assisting the trade.
In our judgment the judge applied the right principle and we are not prepared to interfere with his
finding. The appeal is accordingly dismissed with costs.
Appeal dismissed.

329
(1959) 1 WIR 330

Davson & Co Ltd v Inland Revenue Commissioners

SUPREME COURT OF BRITISH GUIANAFULL COURT OF APPEAL
HOLDER C J, STOBY AND PHILLIPH JJ
25, 26, 29 SEPTEMBER, 13 DECEMBER 1958 DELIVERED 2 SEPTEMBER 1959

Income Tax Taxpayer shareholder in company Capital profit made by company from sale of shares
Distributed as profits out of capital reserve Dividend Income Liability of taxpayer to tax Income Tax
Ordinance, Cap 299 [BG], ss 5 (c), 29, 30.
The appellants were a company incorporated in the U K, and in 1949 they carried on business in British
Guiana. They held 600 shares in the Rupununi Development Co, Ltd, a cattle-ranching company
incorporated under the Companies (Consolidation Ordinance [BG]. In 1949 the Rupununi Co sold certain
immovable property and realised a profit of $123,889.25. This was a capital profit and therefore not liable to
assessment to income tax in their hands. They resolved to make a cash distribution of $2 per share to be
paid out of the profit of $123,889.25 and the appellants were paid $1,200 in respect of their 600 shares. The
question arose whether this $1,200 should be included in computing the appellants chargeable income for
the year of assessment 1950.
Held: A dividend distributed by a company from a reserve fund made up of profits realised from the sale of
its capital assets is not assessable to income tax when received by the shareholders of the company and is
not dividend or income in the hands of the shareholders.
Appeal allowed.
Editorial Note. Section 5 (c) of the Income Tax Ordinance, Cap 299 [BG], is as follows:

5. Income tax, subject to the provisions of this Ordinance, shall be payable at the rate or rates herein
specified for each year of assessment upon the income of any person accruing in or derived from the Colony
or elsewhere, and whether received in the Colony or not, in respect of
****
(c) dividends, interest or discounts;
Neither dividend nor income is defined by the Ordinance.
Cases referred to
Bollers v Comrs of Income Tax (1935), LRBG (1931-1937) 271
Re Bates, Mountain v Bates [1928] Ch 682, 97 LJ Ch 240, 139 LT 162, 72 Sol Jo 468, Digest Supp
Hill (RA) v Permanent Trustee Co of New South Wales, Ltd [1930] AC 720, 144 LT 65, sub nom Re Hill
(Richard), Hill v Permanent Trustee Co of New South Wales, 99 LJPC 191, PC, Digest Supp
IR Comrs v Reids Trustees [1949] 1 All ER 354, [1949] AC 361, [1949] LJR 701, 93 Sol Jo 146, 30 Tax Cas
431, HL, 28 Digest (Repl) 211, 892
Pugh v Golden Valley Ry Co (1880), 15 ChD 330, 49 LJCh 721, 42 LT 863, 28 WR 863, CA, 30 Digest
(Repl) 218, 607
Canadian Eagle Oil Co, Ltd v R [1945] 2 All ER 499, [1946] AC 119, 114 LJKB 451, 173 LT 234, 61 TLR 577,
27 Tax Cas 206, HL, affg SC sub nom Re Canadian Eagle Oil Co, Ltd, Petition of Right, [1944] 1 All ER
734, CA
Bradbury v English Sewing Cotton Co [1923] AC 744, 92 LJKB 736, 129 LT 546, 39 TLR 590, 67 Sol Jo 678,
8 Tax Cas 481, HL, 28 Digest (Repl) 209, 881

330
Gimson v IR Comrs [1930] 2 KB 246, 99 LJKB 532, 143 LT 704, 15 Tax Cas 595, 28 Digest (Repl) 338, 1500
Neumann v IR Comrs [1934] All ER Rep 398, [1934] AC 215, 103 LJKB 210, 150 LT 481, 50 TLR 246, 78
Sol Jo 121, 18 Tax Cas 332, HL, 28 Digest (Repl) 338, 1501
Appeal
Appeal by the taxpayer by way of case stated from the judgment of the Supreme Court of British Guiana
(Trial DivisionDate J) dated 27 February 1958, whereby it was decided that the amount received by the

taxpayer as cash distribution on the shares held by the taxpayer in the company was income assessable to
tax in the hands of the taxpayer. The facts appear in the judgment.
J H S Elliott (instructed by H C B Humphrys) for the appellants
G M Farnum (instructed by P M Burch-Smith) for the respondents
PHILLIPS J delivered the judgment of the court: The case stated under the Income Tax Ordinance, Cap 299
[BG] (1954, No 385 Demerara), is as follows:
1. On 31 October 1951, the respondents assessed the appellants to tax for the year of assessment
1950 on a chargeable income of $357,920.34.
2. In computing the appellants said chargeable income the respondents included as investment
income $1,200.00 received by the appellants as a cash distribution from the Rupununi Development
Company, Limited (hereinafter called the Rupununi Company).
3. On 3 November 1951, the appellants, by their accountants, Messrs. Fitzpatrick, Graham and
Company, Chartered Accountants, served on the respondents notice of objection in writing to the said
assessment.
4. On 23 February 1954, the respondents confirmed the said assessment in so far as it included the
said cash distribution as part of the chargeable income of the appellants.
5. The appellants appealed to a Judge in Chambers, and the appeal was heard on 22 July 1957, and
10 and 11 January 1958. (No 385 of 1954.)
6. At the hearing of the said appeal the following facts were proved or admitted:
(1) The appellants are a company incorporated in the United Kingdom and were at all material
times carrying on business at lot 17, Water Street, Georgetown, and elsewhere in the Colony.
(2) The appellants were at all material times a shareholder in the Rupununi Company (a company
incorporated in this Colony) and held 600 shares therein.
(3) In the year 1949 the Rupununi Company made a capital profit of $123,889.25 from the sale of
its immovable property at No 27 in the County of Berbice.
(4) At an extraordinary general meeting of the Rupununi Company held on 4 November 1949, the
following resolution was passed, viz.:
That subject to the approval of the Companys AuditorsMessrs. Fitzpatrick Graham and
Companya cash distribution of $2.00 per share be made from the capital profits derived from the sale
of No 27, the balance of such profits remaining thereafter to be placed on reserve and used at the
discretion of the directors for the purchase of bulls, etc.
(5) Messrs. Fitzpatrick Graham and Company having by letter dated 8 November 1949, stated that
they could raise no objection to the proposed distribution, the directors of the Rupununi Company at a
meeting held on 10 November 1949, passed the following resolutions, namely:
1. That the profit of $123,889.25 arising out of the sale of No 27 be transferred to a capital reserve
account.

331
2. That as per the resolution passed by the shareholders at the extraordinary general meeting held
on 4 November 1949, a cash distribution of $2.00 per share to be made to the shareholders, to be paid
out of capital reserve.
(6) On or about 12 November 1949, the appellants received in British Guiana from the Rupununi
Company the sum of $1,200.00 in payment of the cash distribution resolved upon by the directors on
10 November 1949.
7. On 27 February 1958, the judge dismissed the said appeal and confirmed the assessment in the
terms set out in his decision hereto annexed.
8. The appellants being dissatisfied with the decision applied to the judge to state a case on questions
of law for the consideration of the Full Court pursuant to s 57 of the Income Tax Ordinance [BG], which case
the judge states accordingly.
9. The questions of law for the consideration of the Full Court are as follows:
(a) Whether or not the said sum of $1,200.00 was a dividend within the meaning of s 5 of the said
Ordinance.
(b) Whether or not the said sum of $1,200.00 was income of the appellants within the meaning of
the said s 5.
(c) Whether or not, even if the said sum of $1,200.00 be a dividend and be income within the
meaning of the said s 5, the same is chargeable with income tax, having regard to the provisions of the
said Ordinance relating to dividends and to the fact that the said sum of $1,200.00 was paid out of
capital profits.

The facts giving rise to the appeal are not in dispute, and may be summarised as follows:
The appellants are a company incorporated in the United Kingdom and were in the year 1949 carrying
on business in this Colony. They held 600 shares in the Rupununi Development Company, Ltd (hereinafter
referred to as the Rupununi Company), a cattle-ranching company incorporated in the Colony under the
Companies (Consolidation) Ordinance.
In 1949 the Rupununi Company sold certain immovable property which they owned in Berbice and
realised a profit of $123,889.25. They were not dealing in properties, and it is accepted that the profit on this
sale, in so far as the Rupununi Company is concerned, was a capital profit and, as such, not liable to
assessment to income tax in their hands.
At an extraordinary general meeting of the Rupununi Company it was resolved to make a cash
distribution of $2.00 per share to be paid out of the profit of $123,889.25, subject to the approval of the
auditors. The auditors approved the distribution and the appellants were paid $1,200 in respect of the 600
shares held by them.
The sole question for determination is whether this sum of $1,200 received by the appellants in 1949 as
cash distribution on the shares held by them in the Rupununi Company should be included in computing the
appellants chargeable income for the year of assessment 1950. The Commissioners submit that it should
be so included, on the grounds that (a) the distribution by the Rupununi Company was made in cash and not
in the course of liquidation or in the course of an authorised reduction of capital;
(b) the shares of the recipient shareholders are still intact;
(c) the sum distributed by the Rupununi Company out of their capital profits to the appellants was
income in the hands of the recipients;
(d) such income is exigible to income tax under s 5 (c) of the Income Tax Ordinance [BG] which
provides, inter alia, that income tax shall be payable 332 on the income of any person accruing in or
derived from the Colony in respect of dividends.
It was agreed that an exactly similar question came before Savary J, in 1935 in Bollers v Comrs of
Income Tax ((1935), LRBG (1931-1937) 271). In that case it was conceded, as it has been in the instant
case, that under the English Acts a shareholder of a company resident in the United Kingdom is not
assessable to income tax or surtax in respect of capital profits distributed by such company, but it was urged
on behalf of the Crown that the scheme of the local enactment differs from that of the English Acts; it was
then contended that, though not reached by the English Acts, a distribution of capital profits, where not made
in the course of liquidation of a company or in the course of an authorised reduction of capital, is, in the light
of Re Bates Mountain v Bates [1928] Ch 682, 97 LJ Ch 240, 139 LT 162, 72 Sol Jo 468, Digest Supp) and
Hill v Permanent Trustee Co of New South Wales, Ltd ([1930] AC 720, 144 LT 65, sub nom Re Hill (Richard),
Hill v Permanent Trustee Co of New South Wales, 99 LJPC 191, PC, Digest Supp), in the nature of income
in the hands of the recipient shareholders, and within the meaning of the expression dividends in s 5 (c) of
our Ordinance.
After a review of the relevant authorities Savary J, in Bollers v Comrs of Income Tax case ((1935),
LRBG (1931-1937) 271) concluded as follows:
In the result, my view is that the Income Tax Ordinance is similar in scheme to the English Acts so
far as companies are concerned, and that I should apply what appear to me to be the principles laid
down in the English Courts on this point, that is, where income tax is not deductible from a dividend by
the company distributing it, it is not assessable to income tax in the hands of the shareholders or
recipient. That being my view, it is unnecessary to refer to any other authorities cited to me nor do I
feel called upon to define the ambit of the word dividend in s 5 (c) of the Ordinance.
With this conclusion the judge disagreed and relied mainly for his decision on the English case of IR
Comrs v Reids Trustees ([1949] 1 All ER 354, [1949] AC 361, [1949] LJR 701, 93 Sol Jo 146, 30 Tax Cas
431, HL, 28 Digest (Repl) 211, 892).
In that case:
The Respondent Trustees held shares in a South African trading company. The company sold
certain warehouses and office premises, which it occupied for the purposes of its trade, at a profit out
of which it declared and paid a dividend of 20 per cent payable from capital profits. The dividend was
received by the Trustees without deduction of Income Tax, and the dividend on shares held for
liferenters of the trust was credited by the Trustees to the revenue accounts of the liferenters.
On an appeal to the Special Commissioners against an assessment to Income Tax under Case v of
Schedule D in respect of the dividend, the Trustees contended that the dividend, having been paid out

of profits of a capital nature, was not assessable to Income Tax. The Special Commissioners upheld
the Trustees contention, and discharged the assessment.
Held, that the dividend received by the Trustees was income arising from foreign possessions
assessable to tax under Case v of Schedule D.
The claim of the appellants in that case was founded on Case v of Schedule D, and the interpretation of
the words Income arising from possessions out of the United Kingdom.
It did not deal with dividends declared by an English company. The present case deals with a company
incorporated in British Guiana and dividends declared here.
After citing certain passages of the judgment the judge said:
It is clear, I think, that Reids Trustees case ([1949] 1 All ER 354, [1949] AC 361, [1949] LJR 701,
93 Sol Jo 146, 30 Tax Cas 431, HL, 28 Digest (Repl) 211, 892) obliges me to hold that the sum
received by the appellants as cash distribution on their shares in the Rupununi Company was income
in their hands.
Counsel for the appellants contended that the decision of Savary J, was correct and ought not to be
disturbed after 23 years.
He further submitted that:

333
(a)Reids Trustees case ([1949] 1 All ER 354, [1949] AC 361, [1949] LJR 701, 93 Sol Jo 146, 30
Tax Cas 431, HL, 28 Digest (Repl) 211, 892) was inapplicable for the reason that:
(1) It dealt with trust administration.
(2) It was concerned primarily with income arising from possessions out of the United Kingdom.
(3) That it was a decision of the House of Lords not binding on this court.
(b) That the trial judge ought not to have rejected the appellants contention that the sum received
from the Rupununi Company was not a dividend within the meaning of s 5 (c) of the Ordinance, and
that the same was meant to refer to dividends received from revenue profits.
(c) That the judge was wrong in concluding that the local Income Tax Ordinance is not similar in
scheme to the English Acts as far as companies are concerned. (See ss 29 and 30 of the Ordinance.)
(d) That the decision of Savary J, in Bollers v Comrs of Income Tax case ((1935), LRBG (19311937) 271) which has not been overruled for twenty-three years should not now be disturbed unless
upon very special considerations or by statutory enactment. He urged that people had regulated their
affairs and course of action as a consequence of that decision and were it now to be overruled it would
have the effect of retrospective legislation. (Pugh v Golden Valley Ry Co ((1880), 15 ChD 330, 49
LJCh 721, 42 LT 863, 28 WR 863, CA, 30 Digest (Repl) 218, 607)
The Solicitor-Generals argument for the respondents was the same as that contended for by the Crown
in Bollers v Comrs of Income Tax case ((1935), LRBG (1931-1937) 271), but he further submitted that the
question whether the distribution of profits by the company is income cannot now be open to doubt in view of
the facts and judgment in Reids Trustees case ([1949] 1 All ER 354, [1949] AC 361, [1949] LJR 701, 93 Sol
Jo 146, 30 Tax Cas 431, HL, 28 Digest (Repl) 211, 892). He urged that in Reids Trustees case ([1949] 1 All
ER 354, [1949] AC 361, [1949] LJR 701, 93 Sol Jo 146, 30 Tax Cas 431, HL, 28 Digest (Repl) 211, 892)
there was a distribution of a dividend on revenue profits as well as a dividend of 20% on capital profits
resulting from a sale of four properties; that no question was there raised as to whether this cash distribution
of the capital profits was not a dividend, and the Lords treated the cash distribution as a dividend and
income liable to tax in the hands of the taxpayer; and finally that s 10 of the local Ordinance provides no
exemption or modification of dividends on which income tax is imposed by s 5 (c); that the enactments of ss
29 and 30 would not justify the court in importing words to qualify the unequivocal language of s 5.
Rule 20 of the General Rules is as follows:
20. The profits or gains to be charged on any body of persons shall be computed in accordance
with the provisions of this Act on the full amount of the same before any dividend thereof is made in
respect of any share, right or title thereto, and the body of persons paying such dividend shall be
entitled to deduct the tax appropriate thereto.
Rule 20 does not apply to foreign companies. (Canadian Eagle Oil Co, Ltd v R ([1945] 2 All ER 499, [1946]
AC 119, 114 LJKB 451, 173 LT 234, 61 TLR 577, 27 Tax Cas 206, HL, affg SC sub nom Re Canadian Eagle
Oil Co, Ltd, Petition of Right, [1944] 1 All ER 734, CA.)
Sections 29 and 30 of the local Income Tax Ordinance, Cap 299, enact as follows:

29. (1) Every company registered in the Colony shall be entitled to deduct from the amount of any
dividend paid to a shareholder tax at the rate paid or payable by the company (double taxation relief
being left out of account) on the income out of which the dividend is paid:
Provided that where tax is not paid or payable by the company on the whole income out of which the
dividend is paid the deduction shall be restricted to that portion of the dividend which is paid out of income
on which tax is paid or payable by the company.
(2) Every company aforesaid shall upon payment of a dividend, whether tax is deducted therefrom
or not, furnish to each shareholder a certificate setting forth the amount of the dividend paid to that
shareholder and the

334
amount of tax which the company has deducted or is entitled to deduct in respect of that dividend.
****
30. Any tax which a company has deducted or is entitled to deduct under the last preceding
section from a dividend paid to a shareholder, and any tax applicable to the share to which anyone is
entitled in the income of a body of persons assessed under this Ordinance, shall, when that dividend
or share is included in the chargeable income of the shareholder or person, be set-off for the purposes
of collection against the tax charged on that chargeable income.
These sections of course refer to companies registered in the Colony.
It will be necessary therefore to review the decision in Reids Trustees case ([1949] 1 All ER 354, [1949]
AC 361, [1949] LJR 701, 93 Sol Jo 146, 30 Tax Cas 431, HL, 28 Digest (Repl) 211, 892).
Lord Simonds in his judgment says (30 Tax Cas at p 440):
While under Rule 20 of the General Rules an English company may, if it thinks fit, deduct tax from
the dividend that it pays, that Rule has no application to the case of a foreign company whether or not
it has in fact paid tax on some part of the profits out of which the dividend is paid. It is not, I think,
going too far to say that for the determination of the question, whether under Case v the dividend
payable upon the shares of a foreign company is taxable income, it is irrelevant and, more than that,
misleading to look to the analogy of an English company. And here, too, I would remind your
Lordships of the observation of Lord Phillimore in Bradbury v English Sewing Cotton Co, Ltd ([1923]
AC 744, 92 LJKB 736, 129 LT 546, 39 TLR 590, 67 Sol Jo 678, 8 Tax Cas 481, HL, 28 Digest (Repl)
209, 881) ([1923] AC at p 770), that, in regard to the income arising from foreign possessions, The
officers of the Crown do not know and do not care what is the character of the sources from which the
money comes.
It must not be lost sight of that what Reids Trustees case ([1949] 1 All ER 354, [1949] AC 361, [1949]
LJR 701, 93 Sol Jo 146, 30 Tax Cas 431, HL, 28 Digest (Repl) 211, 892) was dealing with was income
arising from possessions out of the United Kingdom, and Lord Normand makes that perfectly clear in his
judgment (30 Tax Cas at p 443) where we says:
But then the respondents say that, though the dividend may be of the nature of income, it is not
taxable income. They say justly that a profit derived from the sale of a capital asset would neither have
been taxed in the hands of the company if it had been registered in the United Kingdom, nor have
been taxed by deduction when the dividend was paid. The company would not have been taxed on
this profit, for it would not have been reckoned part of the profits and gains of the companys business
under the rules by which the profits and gains of the company would have been computed if it had
been a British company. The shareholder would not have suffered any deduction because the
dividend was not paid out of profits and gains brought into charge. The argument for the respondents
then attempted an elaborate analogy between the taxation of the British company and its shareholders
and the taxation of a foreign company and its shareholders. It assumed an overriding principle of
taxation consistently applied both to British and to foreign companies and their respective members.
The Income Tax Act is an unpromising field for the argument from analogy, and it has been said in
authoritative expositions of the law in this House that there is no analogy between the provisions for
taxing the profits of British companies and the provisions for taxing the profits of foreign companies,
and no overriding principle common to both.
And again (ibid at p 444) he says:

The position of foreign companies and their shareholders resident in the United Kingdom is entirely
different. The foreign company is beyond the jurisdiction and is not assessable and cannot be taxed;
the British shareholder is directly assessable and is taxed on the full amount of the dividend received
335 by him (Rule 1 of the rules applicable to Case V). In Canadian Eagle Oil Co, Ltd, v R ([1945] 2 All
ER 499, [1946] AC 119, 114 LJKB 451, 173 LT 234, 61 TLR 577, 27 Tax Cas 206, HL, affg SC sub nom
Re Canadian Eagle Oil Co, Ltd, Petition of Right, [1944] 1 All ER 734, CA), Viscount Simon said
([1946] AC at p 133):
The provision of the Income Tax Act, 1918, by which deduction at the source is authorised in the
case of dividends in respect of shares in companies resident in the United Kingdom, stands in sharp
contrast to the rules which relate to dividends of foreign companies.
It was conceded in the present case that the dividend was paid out of capital profits.
In Gimson v I R Comrs ([1930] 2 KB 246, 99 LJKB 532, 143 LT 704, 15 Tax Cas 595, 28 Digest (Repl)
338, 1500) it was also conceded that so much of the dividend as was paid out of profits on realisation of
investments should be treated as of a capital nature and not assessable to income tax. In Neumann v I R
Comrs ([1934] All ER Rep 398, [1934] AC 215, 103 LJKB 210, 150 LT 481, 50 TLR 246, 78 Sol Jo 121, 18
Tax Cas 332, HL, 28 Digest (Repl) 338, 1501), Lord Tomlin says ([1934] AC at p 222):
The relative positions of a company and the shareholders of the company in relation to income tax,
under the Income Tax Acts, have always been recognised as special in character. It was never, I think,
doubted that under the Act of 1842 the profits of a business carried on by a company were taxable
against the company under Sched. D, and were not taxable again after distribution in the hands of the
shareholders under Sched. D or any other schedule. At the same time it was permissible to the
company under s 54 of the Act of 1842 to deduct from the dividend the proportionate part of the tax
paid to the tax collector, and the shareholders entitled to exemption from or abatement of income tax
could upon the footing of the deduction obtain the necessary return of tax.
Ibid at p 228 he says:
It is not disputed that if a dividend is paid out of the profits produced by a sale of a capital asset it is
not made out of profits or gains charged on the Company, and therefore no deduction from the
dividend is authorised and the dividend itself is not liable to be taken into account in fixing the liability
to surtax of a shareholder.
And finally, to quote the words of Lord Reid in Reids Trustees case ([1949] 1 All ER 354, [1949] AC 361,
[1949] LJR 701, 93 Sol Jo 146, 30 Tax Cas 431, HL, 28 Digest (Repl) 211, 892) (30 Tax Cas at p 450):
It is true that, owing to the special provisions of the Income Tax Acts [UK] which distribute liability
for Income Tax (including Surtax) between a British company and its shareholders, a dividend paid by
a British company out of its capital profits is not taxable. But there are no provisions applicable to a
foreign company which bring about this result.
I can find no satisfactory alternative to the view that, if a foreign company chooses to distribute its
surplus profits as dividend, the nature and origin of those profits do not and cannot be made to affect
the quality of the receipt by the shareholder for the purpose of Income Tax.
It would seem clear that in that case the distinction was being drawn between English and foreign
companies, the relevant words in the charging section being Income arising from possessions out of the
United Kingdom.
The distinction between capital profits and trading profits for this purpose was clearly drawn by Lord
Simonds (30 Tax Cas at p 438) when he said:
On the same 23rd October 1943, the board of directors also resolved that a dividend of 20 per cent
be declared from capital profits realised on the sale of properties during the past financial year. This
dividend also was duly declared and paid. No deduction of Income Tax was made in the hands of the
paying agent or otherwise. The sum of 6,866 now in question represents this dividend of 20 per cent
upon the 3,433 shares held by the respondents. I am content to state thus shortly the facts which are
set out in great detail in the case because I do not understand it to be denied by the Crown that the
336 dividend of 20 per cent was in fact paid out of what are conveniently called capital profits, that is
to say, profits which were derived from a sale of capital assets at an enhanced value, and would not, if
the company were being assessed to tax under Case I of Schedule D, be included in the computation
of its trading profits.

Where, in England, by virtue of the General Rules no tax is exigible as on a sale of capital assets
because the profits are not taxable income and for the reason that they are not derived from annual profits
or gains or trading profits: the same position would obtain here as by reason of ss 29 and 30, in our view, the
dividends in so far as companies are concerned were not intended to mean dividends derived from the
sale of capital assets or from capital profits but from trading profits and such as would be reflected in the
ordinary profit and loss account of a company.
In other words, in our opinion, the scheme, in this regard, of both enactments (in England and in British
Guiana) is the same.
In our judgment the view taken by Savary J, in Bollers v Comrs of Income Tax case ((1935), LRBG
(1931-1937) 271) was not erroneous. We, therefore, do not find ourselves in agreement with the
conclusions arrived at by the judge herein and the appeal is allowed with costs.
Appeal allowed.

(1959) 1 WIR 337

Ian Henderson v D Henderson & Co Ltd

SUPREME COURT OF JAMAICATHE HIGH COURT
WADDINGTON J
6, 7APRIL, 3 JUNE 1959

Contract of employment Termination Notice required From year to year.

D H & Co, Ltd, employed IH as accountant under a contract in writing for 3 years and thereafter from year
to year subject to 3 months notice on either side. A few days before the expiration of the term of 3 years
the company purported to terminate the employment of IH on 3 months notice.
Held: that the contract could only be terminated at the end of a current year, upon at least 3 months notice.
Judgment for the plaintiff.
Case referred to
Re Berker Sportcraft, Ltds Agreements, Hartnell v Berker Sportcraft, Ltd (1947), 177 LT 420, 91 Sol Jo 409,
12 Digest (Repl) 372, 2937
Special case.
Special case. The facts so far as relevant appear sufficiently in the judgment.
Mahfood (instructed by Nethersole and Sinclair & Perkins) for the plaintiff
Wooding Q C and Blake Q C (instructed by Cargill & Graham) for the defendants
WADDINGTON J. This is a special case submitted by the parties for the opinion of the court on a question
of law arising on the construction of an agreement in writing entered into by the plaintiff and the defendants
on 18 September 1953.
The facts of the case so far as they are relevant have been agreed by the parties and are set out in the
Special Case to which the said agreement is exhibited marked with the letter A.

337
Paragraphs 1, 2 and 3 of the agreement read as follows:
1. The Company appoints Mr Henderson as Accountant and in such position he shall carry out his
work to the satisfaction of the Managing Director of the Company for the time being. Mr Henderson
shall hold the said appointment (subject as hereinafter provided) for a period of three years from the
date of his first arrival in Jamaica (subject to the provisions of Clause 3 hereof) and thereafter from
year to year subject to three months notice on either side.
2. In consideration of the services to be rendered by Mr Henderson and subject to the due
fulfilment thereof the Company shall pay to him a salary at the rate of 1,500 (one thousand five
hundred pounds) Jamaica currency per annum commencing on the date he takes up his duties in
Jamaica.

3. Either party hereto shall have the right to terminate this agreement at the end of the first year of
its currency by giving to the other party three months previous notice in writing.
The plaintiff commenced his employment with the defendants under the terms of the said agreement on
10 December 1953. No notice to terminate the agreement was given by either party at the end of the first
year of its currency as provided for in paragraph 3 of the agreement, and the plaintiff remained continually in
the employment of the defendants performing his duties under the said agreement until the month of
December 1956.
On 7 December 1956, the defendants (through their solicitors) purported to terminate the agreement
under paragraph 1 thereof by a letter addressed to the plaintiff stating inter alia:
We are instructed by the Company to inform you that they have decided to determine your contract
under paragraph 1 of the Contract, namely, by giving you 3 months notice to expire on 10 March 1957,
that is 3 clear months after the expiry of the three-year Contract, and that as our clients do not require
you to attend at their office after the 10th instant, they are paying you 3 months salary in lieu of your
attendance during the 3 months notice period.
The defendants contend that the plaintiffs employment was properly terminated in accordance with the
terms of the agreement.
The plaintiff contends that his employment under the said agreement could not lawfully be terminated
save by a notice expiring on the 10th day of December of the year 1957 or some subsequent year.
Upon the above facts the parties concurred in stating the following question for the opinion of the court:
Were the defendants entitled to terminate the plaintiffs employment by three months previous
notice expiring on the 10th day of March 1957?
The parties have further agreed as follows:
(a) If the answer to the above-mentioned question be in the negative, then there shall be judgment
for the plaintiff in a sum calculated at the rate of 145 16s 8d per month for so many months as the
court may hold that the plaintiffs employment would have continued if lawfully determined upon due
notice given by the defendants on or before 10 December 1956, in that behalf, with costs to be taxed.
(b) If the answer to the said question be in the affirmative, then there shall be judgment for the
defendants with costs to be taxed.
In the course of the arguments before me it was conceded by counsel for the defendants that except as
provided by paragraph 3 of the agreement, the employment could not be terminated within the three-year
period and that thereafter it had to go beyond 10 December 1956.
The burden of the argument by counsel for the plaintiff was that after 33810 December 1956, the
plaintiffs employment became a hiring from year to year subject to three months notice on either side. That
a hiring from year to year cannot be terminated by a notice expiring before the end of a current year of
employment except under a custom or by express agreement and that as there was no evidence of any
custom or express stipulation to the contrary, the earliest date on which the plaintiffs employment could be
terminated was 10 December 1957.
Alternatively, counsel for the plaintiff contended that the correct interpretation of paragraph 1 and of the
agreement as a whole is that the parties intended an employment of at least fours years duration (subject to
paragraph 3 thereof) and accordingly, the agreement could not be lawfully terminated before 10 December
1957.
Counsel for the defendants contended that when the agreement is looked at as a whole, the correct
construction is that it provides for a hiring for three years certain (subject to paragraph 3) and thereafter to
go on as an indefinite hiring subject to three months notice on either side.
He contended further that the term from year to year was a term of art used only when dealing with
cases of landlord and tenant, and that the incidents annexed to this term would not apply to commercial
agreements such as between master and servant.
He submitted that the agreement says:
I take you for three years certain and thereafter indefinitely subject to three months notice,
and that the words from year to year were not different from from time to time, meaning, indefinitely.
Several cases were cited by counsel on both sides in support of their arguments. I do not propose to
review these cases in any detail as I find that most of them are clearly distinguishable in certain material

respects and decided on the construction of the particular words and the circumstances in which they were
used in the agreements concerned in those cases.
No cases were cited (apart from cases of landlord and tenant) in which the words being construed were
similar to the words in paragraph 1 of the agreement in this case.
The particular words in this agreement which I am required to interpret are the words and thereafter
from year to year subject to three months notice on either side, contained in paragraph 1 of the agreement.
These words of course cannot be construed in their isolated context but must be read into the agreement as
a whole. It is my task therefore to endeavour to ascertain from the agreement as a whole what the parties
meant by the use of these words, to declare the meaning of these words, and to give effect to their
expressed intention.
The term from year to year when used in a tenancy agreement is undoubtedly a term of art importing
certain incidents, for example, that a yearly tenancy is thereby created, terminable by six months notice
expiring at the end of any year of the tenancy, subject of course to any express provision to the contrary.
The question is, does this term when used in a commercial agreement such as the agreement in this case
import the same incidents?
In Strouds Judicial Dictionary (3rd Edn), Vol 4 at p 3357, it is stated:
The expression from year to year relating to a tenancy of land, imports certain incidents, eg a right
to determine the tenancy by six months notice, the same incidents are not necessarily imported into a
commercial agreement relating to the provision of advice and the performance of services. (Re Berker
Sportcraft, Ltds Agreements, Hartnell v Berker Sportcraft, Ltd ((1947), 177 LT 420, 91 Sol Jo 409, 12
Digest (Repl) 372, 2937.)
In the case cited in this passage the agreement was to commence on 1 October

339
1941, and to continue from year to year until determined by either side as hereinafter provided.
The agreement contained elaborate provisions for its determination, but the plaintiff sought to terminate
it in 1946 in manner other than as provided in the agreement, contending that the expression from year to
year was a term of art, importing a right to determine at six months notice expiring with the year. Jenkins J
(as he then was), said (91 Sol Jo at p 410):
But this expression was a term of art only in relation to tenancies of land, and could not apply with
equal force in a commercial agreement of the present character.
The plaintiffs contention was rejected as it was clear that the express provisions for determination of
the agreement were inconsistent with and repugnant to the incidents imported by the expression from year
to year when used in a tenancy agreement. The case, however, appears to leave open the question
whether these incidents will apply to a commercial agreement when there is nothing in the agreement
inconsistent with or repugnant to the incidents imported by the term.
In the instant case, there is clearly nothing in the agreement inconsistent with or repugnant to the
incidents imported by the use of the term from year to year except that the length of notice is reduced from
six to three months.
It is a canon of construction that when parties to an agreement deliberately use words or phrases which
are technical or terms or art those words or phrases must be given their technical or artistic meaning in the
absence of a context or other indication that the parties used them with some other meaning.
I can find nothing in the agreement as a whole to indicate that the parties intended any meaning other
than the technical or artistic one as varied by the provision for a shorter period of notice. If I am correct in
this view it follows therefore that from and after 10 December 1956, the plaintiffs employment would have
been on a yearly basis and would have continued for at least one year after 10 December 1956, and could
not have been lawfully terminated except by three months notice expiring on 10 December 1957.
Assuming, however, that I am incorrect in the above-mentioned view and that the technical or artistic
meaning of the term from year to year ought not to apply in the circumstances of this agreement, then it
would be necessary to interpret the words according to their ordinary literal or grammatical meaning, read in
the context of the agreement as a whole.
Counsel for the defendants submitted that these words were no different from form time to time
meaning indefinitely.
I do not share this view. To give the words this meaning would be, in my view, to substitute words that
the parties did not use and having a different meaning. The ordinary literal or grammatical meaning of the
words from year to year can only, in my opinion, mean from one year to another year, that is, from one
period of 365 days to another period of 365 days (or 366 days in the case of a leap year) and so on from
one year to another unless terminated at the end of a current yearly period by three months previous notice
by either side.

If this is the ordinary literal or grammatical meaning of these words, then again it follows that from and
after 10 December 1956, the plaintiffs employment would have been on a yearly basis and would have
continued for at least one year after 10 December 1956, as such a hiring, that is, a yearly hiring, cannot be
terminated before the end of the year except under a custom or by agreement. (See Diamonds Law Of
Master And Servant (2nd Edn) at p 177) No custom to the contrary has been established in this case, and
the words subject to three months notice on either side cannot in my view be construed as an agreement
to the contrary.

340
I am all the more fortified in my opinion as to the meaning of these words when I peruse paragraph 5 of
the agreement which reads as follows:
In addition to the usual public holidays Mr Henderson shall be entitled to fourteen days local leave
in every year such holidays to be taken with reasonable regard to the requirements of the Companys
business. If this agreement is terminated at the end of the first year as provided by Clause 3 hereof Mr
Henderson shall be entitled to no other holidays but if continued to a minimum of three years Mr
Henderson shall be entitled at the end of such period of three years to have his fourteen days annual
leave extended to a total of three months on full pay provided such leave is taken outside Jamaica in a
temperate zone.
The Company will pay the passages to the United Kingdom or equivalent by Elders & Fyffes
Steamers of Mr Henderson and his wife and return passages at similar cost in respect of such long
leave.
Surely, this paragraph indicates the intention of the parties as to the likelihood of the continuance of the
agreement beyond the three-year period, in circumstances which would entitle the plaintiff to three months
leave on full pay during the year immediately following the three-year period. It would seem therefore that to
construe the right to determine the agreement under paragraph 1 in the manner contended and as exercised
by the defendants would be to deny the plaintiff his rights under paragraph 5 and would be clearly
inconsistent therewith.
On any view of the agreement read as a whole, I am of the opinion that the defendants could not
lawfully terminate the plaintiffs employment except by at least three months notice expiring on 10
December 1957.
I therefore answer the question stated for the opinion of the court in the negative.
It follows that there will be judgment for the plaintiff in a sum calculated at the rate of 145 16s 8d per
month for a period of nine months, that is, the sum of 1,312 10s Od, with costs to be taxed.
Judgment for the plaintiff.

(1959) 1 WIR 341

Peter Francis Kerr-Jarrett And Richmond William Noble v The

Commissioner Of Income Tax
SUPREME COURT OF JAMAICATHE HIGH COURT IN CHAMBERS
WADDINGTON J
8 APRIL, 16 JULY 1959

Income Tax Assessment Capital profit Chargeable income Income Tax Law, Cap 201 (1938 Edn) [J]
Income Tax (Amendment) Law, 1948 [J] Income Tax (Amendment) Law, 1951 [J].
The appellants K-J and N as trustees of a settlement carried on the business of farming and the
manufacturing of sugar and rum. They sold the property of the trust to a company and thereupon ceased to
carry on business. Included in the sale were cattle and stocks of sugar. The appellants were assessed
income tax on the profits arising from the sale of the cattle and sugar.
Held: that the profits arising from the sale of the cattle and sugar were taxable, being profits derived from
the carrying on of the business and that such

341

profits were not the result of capital gain or the realisation of assets by persons who had ceased to carry on
business.
Appeal dismissed.
Editorial Note. This appeal was also in respect of other matters which call for no report, as subsequent
legislation has dealt with the points involved. The portions of the judgment referring to these matters have
been deleted.
Cases referred to
Whimster & Co v IR Comrs [1926] SC 20, 12 Tax Cas 813, 28 Digest (Repl) 424, *944
Sharkey v Wernher [1955] 3 All ER 493, 99 Sol Jo 793, 36 Tax Cas 275, 28 Digest (Repl) 74, 280
IR Comrs v Nelson [1939] SC 689, 22 Tax Cas 716, 28 Digest (Repl) 46, *130
OKane (J & R) & Co v IR Comrs (1922), 126 LT 707, 66 Sol Jo 281, 12 Tax Cas 303, HL, 28 Digest (Repl)
411, 1827
IR Comrs v Barr [1954] 2 All ER 218, 98 Sol Jo 334, 35 Tax Cas 293, 47 R & IT 324, HL, 28 Digest (Repl)
70, 267
Appeal
Appeal from the decision of the Income Tax Appeal Board, dismissing an appeal by the appellants from an
assessment to income tax against them.
P F Kerr-Jarrett for the appellants
W D Marsh for the respondent
WADDINGTON J. This is an appeal from the decision of the Income Tax Appeal Board dismissing an
appeal by the appellants from an assessment to income tax made against them by the respondent in
respect of the year of assessment 1954.
The appellants were, at the relevant time, the trustees of a settlement created on 12 December 1947,
and as such, they carried on the business, inter alia, of farming and manufacturing sugar and rum on the
Barnett Estates at Montego Bay in the parish of St James.
By an agreement dated 6 June 1953, made between the appellants of the one part and Barnett Limited,
a company incorporated on 12 May 1953, under the Companies Law of this Island, with registered office at
Barnett Estates above-mentioned, of the other part, the appellants sold all the trust property (excepting
some items of real property which are not relevant to these proceedings) to Barnett Limited and thereupon
the appellants ceased to carry on the business of farming and manufacturing sugar and rum.
Included in the trust property sold to Barnett Limited were stocks of sugar and cattle. The appellants
were assessed by the respondent to income tax on the profit arising from the sale of the sugar and the cattle
to Barnett Limited.
The appellants appealed to the Income Tax Appeal Board under s 53 of the Income Tax Law, 1954 [J],
against the respondents assessment, and their appeal was disallowed by the Board on 17 December 1957.
It is from this decision of the Income Tax Appeal Board that the appellants now appeal.
The appellants contend that the profit made on the sale of the sugar and cattle was not taxable, as this
was a capital transaction or realisation of assets by the appellants, who had ceased to carry on business.
It was submitted on their behalf that the transaction should be treated as if the trustees had ceased
business just before the sale, so that at that moment the valuation should have been on the cost or market
value of the assets in question, whichever was the lower (vide the opinion of the Lord President (Clyde) in
Whimster & Co v I R Comrs ([1926] SC 20, 12 Tax Cas 813, 28 Digest (Repl) 424, *944) (12 Tax Cas at p
823)).
The respondent contends that the profit made by the appellants on the sale of the sugar and cattle was
not a capital profit, but a revenue profit as it was

342
a profit made on a sale of the appellants stock-in-trade in the course of their trade.
Several authorities were cited on behalf of the respondent in support of this contention, including the
following: Sharkey v Wernhcr ([1955] 3 All ER 493, 99 Sol Jo 793, 36 Tax Cas 275, 28 Digest (Repl) 74,
280); I R Comrs v Nelson ([1939] SC 689, 22 Tax Cas 716, 28 Digest (Repl) 46, *130); OKane (J & R) & Co
v I R Comrs ((1922), 126 LT 707, 66 Sol Jo 281, 12 Tax Cas 303, HL, 28 Digest (Repl) 411, 1827); I R
Comrs v Barr ([1954] 2 All ER 218, 98 Sol Jo 334, 35 Tax Cas 293, 47 R & IT 324, HL, 28 Digest (Repl) 70,
267).

It was submitted that the only way in which the appellants could claim that the profit was a capital profit
was by showing that they had ceased to trade before disposing of their assets; that there must be a clear
gap between their ceasing to trade and their disposal of the assets.
The question therefore which falls for my determination is: Was the assessment of the appellants to
income tax on the profit arising from the sale of the sugar and the cattle correct?
As the appeal is in respect of the year of assessment 1954, the question must be determined in
accordance with the provisions of the Income Tax Law, Cap 201 [J], as amended by the Income Tax
(Amendment) Law, 1948 [J], and the Income Tax (Amendment) Law, 1951 [J].
It is clear that in order to render the appellants liable to income tax on the profits arising from the sale of
the sugar and the cattle, the Revenue must bring them within the taxing provisions of the Law and this they
can only do by establishing that the appellants are caught by the provisions of s 4 (1) of the Income Tax Law,
Cap 201 [J], ie that these profits represented income arising or accruing and derived from the annual profits
or gains from a profession, business, trade, adventure, or concern in the nature of a trade, employment or
vocation. Whether or not the Revenue have established the appellants liability to income tax will in my view
depend on the answer to the questions:
Were the appellants at the time the profits accrued engaged in their business of farming and
manufacturing sugar and rum, and did the profits in question arise from that business?
If the answers to these questions are in the affirmative, then, in my view, these profits would be properly
assessable to income tax.
The appellants contend, however, that these profits are not taxable as they were the result of a capital
transaction or realisation of assets by the appellants, who had ceased to carry on business. If this was in
fact the position, then clearly the profits would not be assessable to income tax.
I can find no evidence that the appellants had ceased to carry on their business before 6 June 1953,
and it appears that they continued in business right down to the actual moment when, by their agreement of
that date, they sold the assets of the business to Barnett Limited and that they then ceased to carry on
business.
The appellants submitted that the transaction should be treated as if they had ceased business just
before the sale. To do this would be to distort the facts of the case.
I find that the appellants at the time these profits accrued were engaged in business and that the profits
arose from that business.
If I am right in this view, it follows that the appellants were properly assessed to income tax in respect of
these profits, and their appeal on this issue must be dismissed.
Appeal dismissed.
P F Kerr-Jarrett (for the appellant); Crown Solicitor (for the respondent).

343
(1959) 1 WIR 344

R v Roy Lawson
SUPREME COURT OF JAMAICACOURT OF APPEAL
MACGREGOR C J, SEMPER AND DUFFUS JJ
22 SEPTEMBER, 21 OCTOBER 1959

Criminal law Possession of ganja Definition of ganja Medicinal preparation Dangcrous Drugs Law,
Cap 90 [J], ss 2, 7.
By s 2 of the Dangerous Drugs Law, Cap 90 [J], ganja includes all parts of the pistillate plant known as
cannabis sativa from which the resin has not been extracted and includes any resin obtained from that plant,
but does not include medicinal preparations made from that plant.
Held: (i) a crude mixture of ganja and rum, although used medicinally, is not a medicinal preparation for the
purpose of the Dangerous Drugs Law [J].
(ii) the medicinal preparation contemplated by the Dangerous Drugs Law [J] must be manufactured or
compounded pursuant to the Dangerous Drugs Regulations, 1948 [J], made under s 9 of the Law, published
in the Jamaica Gazette, Proclamations, Rules and Regulations, at p 90, on 15 April 1948.
Appeal dismissed.

Cases referred to
Nairne v Stephen Smith & Co, Ltd, & Pharmaceutical Society of Great Britain [1942] 2 All ER 510, [1943] 1
KB 17, 112 LJKB 108, 168 LT 175, 59 TLR 16, 86 Sol Jo 349, 40 LGR 301, 2nd Digest Supp
Berry v Henderson (1870), LR 5 QB 296, 39 LJMC 77, 22 LT 331, 34 JP 805, DC, 34 Digest 570, 267
Appeal
Appeal from conviction by the Resident Magistrate, St Andrew.
Coore (instructed by Stanley Fyfe) for the appellant
F G Smith for the Crown
SEMPER J delivered the judgment of the court: The appellant was convicted on 7 August 1959, by the
Resident Magistrate, St Andrew, on an information charging him with being found in the possession of ganja,
contrary to s 7 (c) of the Dangerous Drugs Law [J]. From this conviction he appeals.
Section 7 of the Dangerous Drugs Law [J] provides:
Every person who
****
(c) has in his possession any . . . ganja;
****
shall be guilty of an offence against this Law.
Ganja is defined in s 2 of the Law as including all parts of the pistillate plant known as cannabis
sativa from which the resin has not been extracted and includes any resin obtained from that plant, but
does not include medicinal preparations made from that plant.
On 3 January 1959, the police visited the room of the appellant and in a search found a flask containing
a mixture of liquid and vegetable matter. On analysis the contents of the flask were found to be a mixture of
rum and ganja. The resin from the pistillate plant cannabis sativa was present. The vegetable matter
consisted of stalks from the shrub. The exhibit, therefore, fell within the definition of ganja.
The appellant sought, however, to escape liability by proving that it was a medicinal preparation made
from cannabis sativa. When he was arrested he said: I am suffering from malaria fever and a friend told me
it was good 344 for it. In evidence he expanded this statement, adding that his expected wife got the
mixture for him, anointed him all over with the contents and that he felt better.
It was submitted that the appellant, having made use of the mixture for medicinal purposes, which was
not and of course could not be contradicted by the Crown, on the authority of Nairnc v Stephen Smith & Co,
Ltd, & Pharmaceutical Society of Great Britain ([1942] 2 All ER 510, [1943] 1 KB 17, 112 LJKB 108, 168 LT
175, 59 TLR 16, 86 Sol Jo 349, 40 LGR 301, 2nd Digest Supp) and Berry v Henderson ((1870), LR 5 QB
296, 39 LJMC 77, 22 LT 331, 34 JP 805, DC, 34 Digest 570, 267), the mixture was a medicinal preparation
within the definition of ganja. We do not agree. The evidence in this case negatives that the mixture was
made or prepared in compliance with the Regulations made under s 9 of the Dangerous Drugs Law [J]. In
fact it was not so contended at the trial, the evidence being to the effect that the exhibit was a crude
admixture of stalks and rum containing such undetermined portion of ganja resin as the rum, having regard
to its alcoholic content may have been able to dissolve. We are of the opinion that the exhibit falls within the
definition of ganja and cannot be said to be a medicinal preparation within the contemplation of the Law.
Section 9 of the Dangerous Drugs Law [J] gives the Governor in Council power to make regulations for
the purpose of preventing the improper use of the drugs to which Part IV of the Law applies. These
Regulations are to include regulations for controlling the manufacture, possession and distribution of these
drugs. By s 10 (1) the drugs to which Part IV of the Law applies include any extract or tincture of the plant
cannabis sativa. Regulations under s 9 have been made by the Governor in Council and were published in
the Jamaica Gazette, Proclamations, Rules and Regulations, on 15 April 1948. Regulation 4 (1) prohibits a
person from being in possession of a drug to which Part IV of the Law applies, unless he is authorised to be
in possession of it. By reg 4 (2) he can only be so authorised if supplied by a registered medical practitioner
or veterinary surgeon or on a prescription from the medical practitioner, veterinary surgeon or by a dentist.
It was clear from the evidence of the appellant, if it was accepted, that his wife obtained the mixture
from her father. There was no evidence that it was supplied upon a prescription from any of the persons set
out in the regulations, nor was there any evidence that the mixture had been manufactured or compounded
by any person with the authority of the Director of Medical Services pursuant to reg 7. The appellant was,
therefore, not authorised to be in possession of the ganja and the ganja did not therefore come within the
exception in the definition.

The appeal is dismissed.

Appeal dismissed.

345
(1959) 1 WIR 346

See Tai v Charles

SUPREME COURT OF TRINIDAD AND TOBAGOAPPELLATE JURISDICTION
BLAGDEN AG C J AND PHILLIPS J
15, 16 SEPTEMBER, 20 OCTOBER 1959

Practice Appeal from Summary Court to Full Court Appellant required to enter into recognizance to
appear and prosecute appeal Whether requirement mandatory or directory Summary Courts Ordinance,
Cap 3, No 4 [T], s 133.
By s 133 of the Summary Courts Ordinance, Cap 3, No 4 [T]:
Within nine days after the pronouncing of the decision, the appellant shall, unless he remains in custody
under the provisions of section 135, enter into a recognizance with one or more sureties acknowledged
before a Magistrate or Justice and conditioned to appear and prosecute the appeal and abide by the
judgment of the Supreme Court thereupon and pay such costs as may be by the Supreme Court awarded.
Such recognizance shall be as in form 3 in the Fourth Schedule hereto: Provided that the Court may accept
a deposit of money from or on account of any person in lieu of such surety or sureties and in such case,
upon the deposit of the sum prescribed by the Court, the appellant shall enter into a recognizance in the
form 4 in the Fourth Schedule.
The appellant, who was not in custody, lodged an appeal against an order for possession made against him
in the Summary Court, but failed within the stipulated period of nine days, or at all, to enter into a
recognizance to appear and prosecute the appeal, nor did he make any deposit of money in lieu.
The respondent took the preliminary point that in the circumstances there was no appeal properly before the
court.
Held: (i) Where an appellant does not remain in custody, the entering into of a recognizance (or the making
of a deposit of money in lieu) by him in accordance with the provisions of s 133 of the Summary Courts
Ordinance, Cap 3, No 4 [T], is a condition precedent to the prosecution of his appeal to the Full Court.
(ii) There is no power or provision whereby the period of nine days prescribed by s 133 for entering into such
recognizance (or making such deposit of money in lieu) may be enlarged.
(iii) As the appellant was never in custody and had not entered into any recognizance (nor made any deposit
of money in lieu) as required by s 133 there was, properly speaking, no appeal before the court and
accordingly the proceedings would have to be struck out.
Appeal struck out.
Cases referred to
Doyle v Stephenson (1959), 1 WIR 296 (T)
Cooke v New River Co (1888), 38 Ch 56
Barker v Palmer (1881), 8 QBD 9, 51 LJQB 110, 45 LT 480, 30 WR 59, DC, 42 Digest 712, 1297
Cooper & Charles v Latour (1932), 6 Trinidad Law Reports, 340
Appeal
Appeal by Milton See Tai against an order for possession made by the Magistrate of Port of Spain. The
facts and arguments are set out in the judgment of the court.
Hamel Wells (instructed by Wong & Sanguinette) for the appellant

Hudson Phillips and K T Phillips (instructed by Harper & Harper) for the respondent
Cur adv vult
BLAGDEN Ag CJ delivered the judgment of the court: This matter comes before us as an appeal against an
order for possession. Counsel for the respondent, however, has taken the preliminary point that there is in
fact no

346
appeal before the court. He bases his contention upon the provisions of the Summary Courts Ordinance,
Cap 3, No 4 [T], s 133, which enacts that:
Within nine days after the pronouncing of the decision, the appellant shall, unless he remains in
custody under the provisions of section 135, enter into a recognizance with one or more sureties
acknowledged before a Magistrate or Justice and conditioned to appear and prosecute the appeal and
abide by the judgment of the Supreme Court thereupon and pay such costs as may be by the
Supreme Court awarded. Such recognizance shall be as in form 3 in the Fourth Schedule hereto:
Provided that the Court may accept a deposit of money from or on account of any person in lieu of
such surety or sureties and in such case, upon the deposit of the sum prescribed by the Court, the
appellant shall enter into a recognizance in the form 4 in the Fourth Schedule.
In the present case it is conceded that the appellant did not remain in custody and did not enter into any
form of recognizance nor make any deposit of money in accordance with the proviso.
The question for decision on this preliminary point is whether upon the proper interpretation of the
provisions of s 133, it is mandatory that the appellant should enter into a recognizance within the stipulated
time limit, or whether that provision is directory only. The vital words are: . . . the appellant shall, unless
he remains in custody . . . enter into a recognizance . . ..
In the recent Full Court case of Doyle v Stephenson ((1959), 1 WIR 296 (T)) the question of the
meaning of the word shall came up for decision in connection with the interpretation of r 52 of the Petty
Civil Courts Rules [T]. GOMES, C J, in the course of giving the judgment of the court said (1 WIR at p 298):
One would have thought that the word shall connotes a command, that something must be done:
the word, however, has been interpreted in certain contexts as denoting something that is merely
permissive. In Cooke v New River Co ((1888), 38 Ch 56) (38 Ch at p 69), BOWEN, L J, said:
After all, the word shall is only the future tense and colourless, but it may receive, and it does
receive, in ordinary language either a compulsory colour or an optional colour from the context.
In Craies On Statute Law, 4th Edn, at p 240, the following passage appears:
As a general rule, the conditions imposed by statutes which authorise legal proceedings to be
taken are treated as being indispensable to giving the court jurisdiction. But if it appears that the
statutory conditions were inserted by the Legislature simply for the security or benefit of the parties to
the action themselves, that no public interests are involved, such conditions will not be considered as
indispensable, and either party may waive them without affecting the jurisdiction of the court.
And in Maxwell On The Interpretation Of Statutes, 7th Edn, at p 316, the following passage is to be
found:
It has been said that no rute can be laid down for determining whether the command is to be
considered as a mere direction or instruction involving no invalidating consequence in its disregard, or
as imperative, with an implied nullification for disobedience, beyond the fundamental one that it
depends on the scope and object of the enactment. It may, perhaps, be found generally correct to say
that nullification is the natural and usual consequence of disobedience, but the question is in the main
governed by considerations of convenience and justice, and when that result would involve general
inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without
promoting the real aim and object of the enactment, such an intention is not to be attributed to the
Legislature.

347
The whole scope and purpose of the Statute under consideration must be regarded.
It is necessary, therefore, to examine the provisions of s 133 of the Summary Courts Ordinance and the
neighbouring sections in some detail. It will be noticed from the provisions of s 133 itself that the
requirement for entering into a recognizance is regarded with some seriousness, as the only alternative
referred to is that of the appellant remaining in custody.

Moreover, s 135 (1) emphasises that aspect of the matter by enacting that a defendant who has given
notice of appeal but is unable to find the necessary surety or sureties may prosecute his appeal without
entering into a recognizance provided he remains in custody pending the hearing of the appeal, and s 135
(2) enacts that the appellant shall, in such case, be retained in custody.
Whilst express provision is made in s 140 for enlargement of the ten days within which an appellant is
required by s 130 to serve a written notice of his reasons for appeal, there is no such provision in respect of
the period of nine days within which the appellant is required to enter into a recognizance under s 133.
In this connection a dictum of GROVE, J, in Barker v Palmer ((1881), 8 QBD 9, 51 LJQB 110, 45 LT
480, 30 WR 59, DC, 42 Digest 712, 1297) is apposite ((1881), 8 QB at p 10):
In construing Acts of Parliament, provisions which appear on the face of them obligatory, cannot,
without strong reasons given, be held only directory. The rule is, that provisions with respect to time
are always obligatory unless a power of extending the time is given to the Court. . . .
Counsel for the appellant submitted that power to extend time could be derived from a general
consideration of the powers of the court conferred by the Judicature Ordinance, Cap 3, No 1 [T]in particular
s 32 (3) (a).
But while this section of the Judicature Ordinance confers upon the Full Court jurisdiction to hear and
determine appeals from magistrates or justices under the Summary Courts Ordinance [T], the Ordinance
contains no provision empowering the court to enlarge time, or amend defects or supplement omissions in
procedural matters, and we do not agree that such a power can be inferred from the mere conferment of the
jurisdiction to hear appeals.
Counsel for the appellant further argued that a power to enlarge time is provided by the Rules of the
Supreme Court [T] made under the Judicature Ordinance. He referred specially to O 60 and to O 64, r 7.
Order 60 is of no application here since r 22 specifically states that nothing in this Order shall apply to
appeals under the Summary Courts Ordinance, Ch 3, No 1 Order 64, r 7, is likewise of no application. It
gives power to a court or judge to enlarge or abridge the time appointed by these rules . . . for doing any
act or taking any proceeding . . ., but the time of nine days appointed for the appellant to enter into a
recognizance is not a time appointed by these rules by a time appointed by the Summary Courts
Ordinance [T].
The 1932 case of Cooper & Charles v Latour ((1932), 6 Trinidad Law Reports, 340) is of assistance as
being a decision on an analogous provision in the Spirits and Spirit Compounds Ordinance, Cap 198 [T].
Section 153 of that Ordinance, dealing with appeals, enacted that:
no appeal shall be allowed . . . unless the party . . . who shall have been convicted, or his
attorney or agent, shall state in an affidavit in writing to be duly sworn the grounds of objection to such
proceedings.
It was held that that section imposed a condition precedent to a right of appeal from a conviction under
the Spirits and Spirit Compounds Ordinance [T] and that as the appellants had failed to comply with it, the
proceedings should be struck out. It seems to us that a similar result obtains here. For the

348
reasons and considerations we have given, we hold that the entering into of a recognizance within the
nine days provided by s 133 of the Summary Courts Ordinance is a condition precedent to the presentation
of an appeal under that Ordinance to the Full Court. Until that is done there is no appeal before the Full
Court, notwithstanding that the records may, through inadvertence or otherwise, have been transmitted to
the Registrar by the Clerk. It is not a question of defective process appearing before the court, which the
court, acting in pursuance of its powers under s 145, may be able to remedy by amendment. It is a question
of no process appearing at all; and there is no power or provision whereby the court can enlarge time and
thus provide opportunity to remedy the omission.
In these circumstances, we hold that the preliminary objection succeeds and the proceedings are
accordingly struck out with costs to be taxed.
Appeal struck out.

(1959) 1 WIR 349

Shudeen v Rajack
SUPREME COURT OF TRINIDAD AND TOBAGOAPPELLATE JURISDICTION

BLAGDEN AG C J AND PHILLIPS J

16 SEPTEMBER, 20 OCTOBER 1959

Landlord and tenant Summary ejectment Jurisdiction Summary Ejectment Ordinance, Cap 27, No 17
[T], s 3 Rent Restriction Ordinance, Cap 27, No 18 [T], s 19 (1).
Summary Courts Jurisdiction Distinction between no jurisdiction and excess of jurisdiction
Summary Courts Ordinance, Cap 3, No 4 [T], s 6.
Practice Appeals from Summary Court to Full Court Notice of reasons for appeal Appellant confined to
reasons in notice except where Full Court in its discretion gives leave to amend Principles upon which Full
Court will exercise discretion and give leave to amend Summary Courts Ordinance, Cap 3, No 4 [T], ss
131, 141.
Section 3 of the Summary Ejectment Ordinance, Cap 27, No 17 [T], enacts that:
When and so soon as the term or interest of the tenant of any premises held by him at will or for any term
not exceeding two years, either without being liable to the payment of any rent or at a rent not exceeding the
rate or two hundred and forty dollars per annum, shall have ended or shall have been determined by a legal
notice to quit or otherwise, and such tenant, or (if such tenant do not actually occupy the premises or only
occupy a part thereof) any person by whom the same or any part thereof shall be then actually occupied,
shall neglect or refuse to quit and deliver up possession of the premises or of such part thereof respectively,
it shall be lawful for the landlord of the said premises or his agent to make complaint on oath before the
Magistrate for the district in which such premises or any part thereof is situate. Such complaint may be in
the form contained in the First Schedule hereto or such other form as the circumstances of the case may
require.
By s 19 (1) of the Rent Restriction Ordinance, Cap 27, No 18 [T], it is provided that:

349
The jurisdiction of Magistrates under the Summary Ejectment Ordinance, shall, during the continuance of
this Ordinance, extend to all premises to which this Ordinance for the time being applies irrespective of the
nature of the tenancy or the length of the term or the amount of the rent.
By s 2 (1) of the Rent Restriction (Exclusion of Premises) Order, 1954 [T], which came into force on 12
February 1954:
There are hereby excluded from the operation of the Rent Restriction Ordinance the following classes of
premises namely, all new buildings, the erection of which is completed on or after the date on which this
Order comes into operation, together with any land appurtenant thereto and to be occupied therewith.
The respondent brought an ejectment complaint in the Magistrates Court against the appellant in respect of
premises the rent where of was in excess of $240 per annum, and at the hearing gave evidence to the effect
that the premises were completed in May 1955.
The magistrate continued the hearing of the case and no objection was raised in regard to his jurisdiction to
do so. After the hearing of some further evidence, the appellants solicitor consented to the making of an
order of possession suspended until a future date.
The appellant appealed on the grounds that the decision was against the weight of evidence and that the
magistrate had no jurisdiction to hear and determine the matter.
At the hearing of the appeal the appellant made application to add two further grounds of appeal to those
given in his notice of reasons for appeal, namely: (1) that the magistrate had exceeded his jurisdiction in
making an order for possession; and (2) that his order was erroneous in law in that it purported to be
founded upon the Summary Courts Ordinance, Cap 3, No 4 [T], and the Rent Restriction Ordinance, Cap
27, No 18 [T], neither of which had any application to the subject-matter of the respondents complaint.
Section 141 of the Summary Courts Ordinance, Cap 3, No 4 [T], dealing with the hearing of appeals enacts
that:

On the hearing, it shall not be competent for the appellant to go into, or to give evidence of, any other
reasons for appeal than those set forth in his notice of reasons for appeal: Provided that where, in the
opinion of the Court, other reasons for appeal than those set forth in the notice of reasons for appeal should
have been given, or the statement of reasons is defective, the Court, in its discretion, may allow such
amendments of the notice of reasons for appeal upon such conditions as to service upon the respondent
and as to costs as it may think fit.
Held: (i) The appellants application to add further grounds of appeal disclosed a substantial ground of
appeal which should have been given and accordingly the court would exercise the discretion conferred
upon it by the proviso to s 141 of the Summary Courts Ordinance, Cap 3, No 4 [T], and allow the application.
(ii) By virtue of the provisions of s 6 of the Summary Courts Ordinance, Cap 3, No 4 [T], and of s 3 of the
Summary Ejectment Ordinance, Cap 27, No 17 [T], and of s 19 (1) of the Rent Restriction Ordinance, Cap
27, No 18 [T], the magistrate initially had jurisdiction to enter upon the hearing of the respondents ejectment
complaint.
(iii) As, however, the rental of the premises exceeded the statutory maximum imposed by s 3 of the
Summary Ejectment Ordinance, Cap 27, No 17 [T], directly it became apparent from the evidence of the
respondent that the premises were not subject to the Rent Restriction Ordinance, Cap 27, No 18 [T], with
the result that the magistrate could not acquire any jurisdiction under s 19 (1) of that Ordinance, the
magistrates initial jurisdiction ceased.

350
(iv) For the magistrate to proceed further with the hearing, as he did, to the point of making an order for
possession, notwithstanding that this was done with the consent of the parties, was to act in excess of his
jurisdiction; and consequently his order for possession was ultra vires and could not stand.
Appeal allowed.
Cases referred to
Richardson v Emmanuel (1954), 15 Trinidad Law Reports, 33
Slacks v Robley No 45 of 1958 (Trinidad)
Appeal
Appeal by Sham Shudeen against an order for possession made by the Magistrate of San Fernando. The
facts and arguments are set out in the judgment of the court.
Selby wooding for the appellant
T Hosein for the respondent
Cur adv vult
BLAGDEN Ag CJ delivered the judgment of the court: In this case the appellant appeals against an order
for possession made against him in respect of premises of which he was the tenant, at the instance of the
respondent landlord. The case raised some interesting points and we are indebted to counsel on both sides
for their careful and lucid arguments.
The facts were that the appellant and respondent entered into a written tenancy agreement in respect of
premises described as the southern part of the lower floor of a two-storeyed building situate and known as
14 Cipero Street in the town of San Fernando, at a monthly rental of $30. The agreement provided for its
termination by either party upon service of sixty days notice.
The respondent duly served such notice on 5 November 1958, but the appellant did not deliver up
possession, and the respondent brought an ejectment complaint under the Summary Ejectment Ordinance,
Cap 27, No 17 [T].
The magistrates jurisdiction to entertain that complaint was derived in the first instance from s 6 of the
Summary Courts Ordinance, Cap 3, No 4 [T].
The relevant portions of this section read as follows:
(1) Every Magistrate and Justice shall have and exercise all such powers, privileges, rights and
jurisdiction as are conferred upon each of them respectively under the provisions of this Ordinance or

of any other enactment, and also, subject to this Ordinance and any other enactment, all such powers,
privileges, rights and jurisdiction as are conferred on Justices of the Peace by Common Law.
(2) Every Magistrate shall have and exercise full power and jurisdiction in respect of all Summary
Offences and all matters relating thereto or in respect of which a Summary Court can make an order in
the exercise of its jurisdiction.
The magistrates jurisdiction to entertain this ejectment complaint was derived in particular from s 3 of
the Summary Ejectment Ordinance, which is in the following terms:
When and so soon as the term or interest of the tenant of any premises held by him at will or for
any term not exceeding two years, either without being liable to the payment of any rent or at a rent not
exceeding the rate of two hundred and forty dollars per annum, shall have ended or shall have been
determined by a legal notice to quit or otherwise, and such tenant, or (if such tenant do not actually
occupy the premises or only occupy a part thereof) any person by whom the same or any part thereof
shall be then actually occupied, shall neglect or refuse to quit and deliver up possession of the
premises or of such part thereof respectively, it shall be lawful for the landlord of the said premises or
his agent to make complaint on oath before 351 the Magistrate for the district in which such premises
or any part thereof is situate. Such complaint may be in the form contained in the First Schedule
hereto or such other form as the circumstances of the case may require.
The form appearing in the First Schedule makes provision not only for reciting the actual rental but also
for stating that that rental falls under the statutory jurisdictional maximum of $240 per annum.
In the present case the appropriate form was used and the rent was correctly entered as $30 per month
but that portion of the form which referred to that rental as being under the maximum was not completed.
Upon the face of it, therefore, it would appear that ejectment from these premises falls outside the
magistrates jurisdiction under the Summary Ejectment Ordinance.
Under the provisions of the Rent Restriction Ordinance, Cap 27, No 18 [T], s 19 (1), however, it is
provided that:
The jurisdiction of Magistrates under the Summary Ejectment Ordinance shall, during the
continuance of this Ordinance, extend to all premises to which this Ordinance for the time being
applies irrespective of the nature of the tenancy or the length of the term or the amount of the rent.
The reference to this Ordinance is, of course, a reference to the Rent Restriction Ordinance [T]. It is
apparent therefore that, notwithstanding the fact that the rental reserved in respect of these premises
exceeded the maximum prescribed by s 3 of the Summary Ejectment Ordinance, the magistrate might
nevertheless have jurisdiction to hear the complaint.
The application of the Rent Restriction Ordinance to the premises in this case was, therefore, a matter
of paramount consideration in determining the extent, if not the existence, of the magistrates jurisdiction to
hear the case. In the event, the magistrate entered upon the hearing of the complaint and the respondent
was called to give evidence, whereupon, at the outset, he disposed of the possibility of the application of the
Rent Restriction Ordinance by saying: The premises were completed in May 1955, and assessed as a new
building on 1 May 1955.
By the Rent Restriction (Exclusion of Premises) Order, 1954 [T], all new buildings, the erection of which
was completed on or after 12 February 1954, were expressly excluded from the operation of the Rent
Restriction Ordinance. The magistrate therefore acquired no jurisdiction to hear the case under s 19 (1) of
that Ordinance and was left only with such jurisdiction as he possessed under s 3 of the Summary
Ejectment Ordinance.
As this latter was limited to a maximum rental of $240 per annum and the rental here was $360 per
annum he should have appreciated that he had no jurisdiction to continue the case and accordingly
terminate it then and there. But he did not do this, and no objection was taken by the solicitor for the
appellant. Indeed, far from taking any objection, he eventually consented to an order for a warrant of
possession to issue against his client, suspended until 21 June 1959.
The first matter for consideration is accordingly the effect, if any, of the appellants consenting to the
order being made.
We have no hesitation in holding that that consent could not and did not confer upon the magistrate
either an enlarged jurisdiction or a jurisdiction he had not got. Nor, in our view, does that consent estop the
appellant from appealing. The matter is a quasi-criminal one, but even if it were not and leave to appeal
were necessary, we would not hesitate to give such leave in circumstances such as these where the
consent order is so patently the result of a complete misapprehension of the true legal position.

But this does not resolve the appellants difficulties. In the first place under the provisions of the
Summary Courts Ordinance [T], s 131 (1), he is precluded from arguing that the court had no jurisdiction in
the case, notwithstanding

352
that this is one of the grounds of appeal which he has filed, because the proviso to that subsection
enacts that it is not competent for the Supreme Court to entertain no jurisdiction as a reason for appeal,
unless objection to the jurisdiction of the court has been formally taken at some time during the progress of
the case and before the pronouncement of the decision. At the same time if what the magistrate did is to be
regarded as exceeding his jurisdiction rather than acting without jurisdiction, the appellant is in the difficulty
that he has not given excess of jurisdiction as one of his grounds of appeal.
To get over this second difficulty counsel for the appellant made application to enlarge his grounds of
appeal. He asked to be allowed to argue that the magistrate had exceeded his jurisdiction and in addition
that he had erred in law in holding that the Summary Ejectment Ordinance and Rent Restriction Ordinance,
or either of them, had any application to this case.
Counsel for the respondent opposed this application, pointing out that these were matters which could
easily have been raised in time, and that a substantial period of time had elapsed, and that it was only
recently that notice of this application had been received.
Section 141 of the Summary Courts Ordinance, dealing with appeals, enacts that:
On the hearing it shall not be competent for the appellant to go into, or give evidence of, any other
reasons for appeal than those set forth in his notice of reasons for appeal: Provided that where, in the
opinion of the Court, other reasons for appeal than those set forth in the notice of reasons for appeal
should have been given, or the statement of reasons is defective, the Court, in its discretion, may allow
such amendments of the notice of reasons for appeal upon such conditions as to service upon the
respondent and as to costs as it may think fit.
Counsel for the respondent pointed out that in exercising its discretion the court should bear in mind
that the appellant actually consented to an order of possession and was thus the principal author of his
present embarrassments.
Counsel for the appellant referred to the case of Richardson v Emmanuel ((1954), 15 Trinidad Law
Reports, 33), where the court held that where the filed reasons for appeal are defective, imperfect or
incomplete, the court has power to grant leave to the appellant to make amendments or add new reasons,
which, in the opinion of the court, should have been included; and that where a substantial ground of appeal
exists, the appellant should be given an opportunity, subject if necessary to terms, of pursuing his appeal in
spite of non-compliance with the requirements of the Ordinance.
Clearly, a substantial ground of appeal exists here, and although it is true that the appellant consented
to what was done it would seem that this was due to a complete inadvertence on his and his solicitors part
an inadvertence which appears to have been shared in some measure by the magistrate himself. It is to be
noted that on the very day following that on which the order was made the appellant filed grounds of appeal
in which he challenged the magistrates jurisdiction. In the circumstances, we felt that this was a proper
case in which the court should exercise its discretion in favour of allowing the appellant to argue additional
grounds of appeal, and we accordingly allowed his application.
The issue accordingly narrows down to this: did the magistrate act without jurisdiction at all, or did he
act in excess of his jurisdiction?
Counsel for the appellant submitted that it was clearly a case of excess of jurisdiction. The court had
jurisdiction to entertain an ejectment complaint in respect of premises where the rent did not exceed $240
per annum. It acted in excess of that jurisdiction because it entertained this complaint in respect of premises
where the rent amount to $360 per annum.

353
Counsel for the respondent argued that the magistrate never had any jurisdiction at any stage to
entertain this complaint at all. He adopted the fourth ground of the appellants grounds for appealnamely
that the magistrate had erred in holding that the Summary Ejectment Ordinance and Rent Restriction
Ordinance had any application to this caseand pointed out that if this was the case, the court could never
have acquired any jurisdiction at any stage.
The distinction between excess of jurisdiction and no jurisdiction is not easy to make out. When a court
exceeds its jurisdiction it immediately enters upon a realm wherein it has no jurisdiction, so that to some
extent excess of jurisdiction and no jurisdiction amount to the same thing. In our view, the difference lies in
this: excess of jurisdiction arises where a magistrate initially has jurisdiction to enter into the hearing of a
complaint, but where during that hearing circumstances are disclosed by evidence or otherwise which
deprive him of any further jurisdiction. If then, in these conditions, he were to continue to entertain the
complaint he would be acting in excess of his jurisdiction.

No jurisdiction on the other hand arises when the magistrate enters upon the hearing of a complaint
without any jurisdiction to do so at all.
In the first case, the magistrate is exceeding a jurisdiction which he has got; and in the second case he
is exercising a jurisdiction which he has not got. In the case before us the magistrate had jurisdiction to hear
complaints under the Summary Ejectment Ordinance, by virtue of the provisions, not only of s 3 of that
Ordinance, but also of s 19 (1) of the Rent Restriction Ordinance.
The distinction between excess of jurisdiction and no jurisdiction came in for examination in the
recent local case of Slacks v Robley ( No 45 of 1958 (Trinidad). In that case, which was heard by three
judges, Camacho Ag CJ, delivering the judgment of the court, said:
The Summary Courts Ordinance conveys jurisdiction to magistrates in criminal cases only and
magistrates are granted jurisdiction in all such which arise in the district to which they are appointed
under s 7 of the Ordinance. The nature of the jurisdiction varies according to the nature of the case.
Some cases must be tried summarily, with consent, while in others a preliminary enquiry must be held.
It follows, therefore, that a magistrate can only have no jurisdiction in a case regularly brought before
the court if it arises outside the district to which he has been appointed.
He then went on to contrast no jurisdiction raised as a ground of appeal under s 131 (1) of the
Summary Courts Ordinance [T] with excess of jurisdiction raised as a ground of appeal under s 131 (2);
and he said:
Section 131 (1) of the Ordinance alone carries a proviso. There is no proviso to s 131 (2) which
applies to excess of jurisdiction. We think it is clear therefore that it is only necessary to raise objection
in the Magistrates Court where it is contended that the case lies outside the local jurisdiction of the
magistrate or where it is contended that there has been no compliance with a condition precedent to
prosecution before the court.
These passages strongly support the argument for the appellant that the present case is one of excess
of jurisdiction.
It is true in this case, that, prima facie, the rental of the premises put the matter beyond the magistrates
jurisdiction under the Summary Ejectment Ordinance [T]. But there was still the possibility of jurisdiction
under the Rent Restriction Ordinance [T]. The magistrate was therefore entitled to enter upon the hearing of
the complaint, and indeed virtually obliged to do so, since it is difficult to see how the magistrate could have
refused to entertain the complaint at that stage. He had therefore, initially, some jurisdiction.
But when it became apparent that the premises were not subject to the 354 provisions of the Rent
Restriction Ordinance the magistrate should have realised that this circumstance left him abandoned, as it
were, in a position beyond his jurisdiction; and to proceed any further as he did was to act in excess of that
jurisdiction.
In these circumstances, the magistrates order for possession cannot stand. The appeal must be
allowed with costs to be taxed.
Appeal allowed.

(1959) 1 WIR 355

Seow And Others v Taylor And Others

SUPREME COURT OF TRINIDAD AND TOBAGOAPPELLATE JURISDICTION
GOMES C J AND CORBIN J
12 MAY, 3 JUNE 1959

Practice Joinder of defendants Two separate trespasses by two different defendants on two different
dates to the same land Common question of law or fact Judicial discretion RSC [T], O 16, r 4.
The appellants issued a writ against T and the respondents L and B claiming damages for trespass to a
parcel of land committed by L in the month of August 1956, and by B in the month of April 1957. Both B and
L were alleged to have committed the two separate trespasses as the servants or agents of T.

On an application made by summons in chambers by B and L the judge ordered that the writ of summons be
amended by striking out the names of B and L as defendants, on the ground that there was no common
question of law or fact involved so as to entitle the appellants to join B and L in the same action.
The appellants appealed against this order contending that RSC [T], O 16, r 4, should be construed liberally
and that the judge in relying on the case of Pope v Hawtrey ((1901), 85 LT 263, 17 TLR 717, CA, Digest,
practice, 142, 1276) had acted on wrong principles.
Held:(i) The determining factor in construing RSC [T], O 16, r 4, was whether there was a common question
of law or fact to justify joinder. Munday v South Metropolitan Electric Light Co Ltd, & New Gutta Percha Co
Ltd ((1913), 29 TLR 346, 57 Sol Jo 427, Digest, Practice, 413, 1121) applied.
(ii)Before making the order the judge clearly applied his mind to the liberal construction that is to be placed
on this rule since the case of Sadler v Great Western Ry Co ([1896] AC 450, 65 LJQB 462, 74 LT 561, 45
WR 51, 12 TLR 394, HL, Digest, Practice, 403, 1038), and it could not therefore be said that he exercised
his discretion on wrong principles.
Appeal dismissed.
Editorial Note. By RSC [T], O, 16, r 1:
All persons may be joined in one action as plaintiffs in whom any right to relief in respect of or arising out of
the same transaction or series of transactions is alleged to exist whether jointly, severally or in the
alternative, where if such persons brought separate actions any common question of law or fact would arise.
. . .
By RSC [T], O 16, r 4:
All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether
jointly, severally or in the alternative. . . .
By RSC [T], O 16, r 12:
The Court or a Judge may at any stage of the proceedings either upon or without the application of either
party and on such terms as may be just,

355
order that the names of any parties improperly joined whether as plaintiffs or as defendants be struck
out. . . .
These rules are identical in terms with RSC [UK], O 16 Before 1896, r 4 and the earlier portion of r 1 of the
RSC [UK], O 16, were in corresponding terms. With effect from 26 October 1896, RSC [UK], O 16, r 1, was
amended to overcome the decision in Smurthwaite v Hannay ([1894] AC 494, 63 LJQB 737, 71 LT 157, 43
WR 113, 10 TLR 649, 7 Asp MLC 485, 6 R 299, HL, revsg SC sub nom Hannay & Co v Smurthwaite [1893]
2 QB 412, CA, Digest, Practice, 400, 1013), in which the House of Lords held that under the rule, as it was
originally worded, several holders of bills of lading could not join as plaintiffs in one action, against the
shipowners, for damages for short deliveries; r 4, however, was never amended. Despite this, the principle
is now accepted that the amendment of r 1 has altered the construction to be placed on r 4, and that both
these rules should be construed in the same way. Thus the rules of O 16 must now be regarded as a code
dealing with joinder of parties, and r 4 is now to be construed liberally, that is to say according to the literal
meaning of the words. (See Oesterreichische Export A G v British Indemnity Insurance Co Ltd ([1918] 2 KB
747, 755, 756, 83 LJKB 971, 110 LT 955, CA, Digest, Practice, 400, 1017); Re Bosch ((1918), 87 LJ Ch 335,
CA))
The cases of Sadler v Great Western Ry Co ([1896] AC 450, 65 LJQB 462, 74 LT 561, 45 WR 51, 12 TLR
394, HL, Digest, Practice, 403, 1038) and Pope v Hawtery ((1901), 85 LT 263, 17 TLR 717, CA, Digest,
practice, 142, 1276) were decided before the amendment of r 1 In Payne v British Time Recorder Co Ltd
([1921] 2 KB 1, 90 LJKB 445, 124 LT 719, 37 TLR 295, CA, Digest, Practice, 408, 1084), the conflicting
decisions as to joinder were considered and it was there held that a plaintiff was entitled to join as codefendants persons against whom he had different causes of action, in cases where common questions of

law or fact were involved. It was thought that this case practically decided also that earlier cases such as
Sadlers v Great Western Ry Co case ([1896] AC 450, 65 LJQB 462, 74 LT 561, 45 WR 51, 12 TLR 394, HL,
Digest, Practice, 403, 1038) would no longer be followed.
In Thomas v Moore ([1918] 1 KB 555, 87 LJKB 577, 118 LT 298, CA, Digest, Practice, 400, 1018), however,
Pickford L J, stated that joinder of parties and joinder of causes of action were discretionary in the sense that
if they were joinder there was no absolute right to have them struck out, but it was discretionary in the court
to do so if it thought right. As Sadlers v Great Western Ry Co case ([1896] AC 450, 65 LJQB 462, 74 LT
561, 45 WR 51, 12 TLR 394, HL, Digest, Practice, 403, 1038) was followed more than once after the
amendment in 1896, the true principle appears to be that it is discretionary in the court to say whether it will
or will not allow joinder, even though the determining factor stated above by the court was present in any
given case.
Cases referred to
Pope v Hawtrey (1901), 85 LT 263, 17 TLR 717, CA, Digest, practice, 142, 1276
Payne v British Time Recorder Co, Ltd, & Curtis, Ltd [1921] 2 KB 1, 90 LJKB 445, 124 LT 719, 37 TLR 295,
CA, Digest, Practice, 408, 1084
Sadler v Great Western Ry Co [1896] AC 450, 65 LJQB 462, 74 LT 561, 45 WR 51, 12 TLR 394, HL, Digest,
Practice, 403, 1038
Gower v Couldridge [1896] 1 QB 348, 67 LJQB 251, 77 LT 707, 46 WR 214, 14 TLR 165, 42 Sol Jo 197, CA,
Digest, Practice, 412, 1115
Frankenburg v Great Horseless Carriage Co [1900] 1 QB 504, 69 LJQB 147, 81 LT 684, 44 Sol Jo 156, 7
Mans 347, CA, Digest, Practice, 411, 1105
Munday v South Metropolitan Electric Light Co Ltd, & New Gutta Percha Co, Ltd (1913), 29 TLR 346, 57 Sol
Jo 427, Digest, Practice, 413, 1121
Smurthwaite v Hannay [1894] AC 494, 63 LJQB 737, 71 LT 157, 43 WR 113, 10 TLR 649, 7 Asp MLC 485, 6
R 299, HL, revsg SC sub nom Hannay & Co v Smurthwaite [1893] 2 QB 412, CA, Digest, Practice, 400,
1013
Oesterreichische Export AG v British Indemnity Insurance Co, Ltd [1918] 2 KB 747, 755, 756, 83 LJKB 971,
110 LT 955, CA, Digest, Practice, 400, 1017

356
Re Bosch (1918), 87 LJ Ch 335, CA
Thomas v Moore [1918] 1 KB 555, 87 LJKB 577, 118 LT 298, CA, Digest, Practice, 400, 1018
Appeal
Appeal against an order made by PHILLIPS, J, in Chambers whereby he ordered that the writ of summons
issued against Egbert Samuel Taylor, Sylvester Liverpool and Charles Beckles, be amended by striking out
the names of Liverpool and Beckles as defendants on the ground that there was no common question of law
or fact involved to justify joinder under RSC [T], O 16, r 4. The relevant facts and arguments are set out in
the judgment of the court.
E H Wells (instructed by M Hamel-Smith & Co) for the appellant
T Hosein (instructed by Fitzwilliam Stone & Alcazar) for the respondents
Cur adv vult
GOMES CJ delivered the judgment of the court: In this case the appellants issued a writ against one Taylor
and the respondents Liverpool and Beckles claiming damages for trespass to land and damage to property
thereon. The respondents Liverpool and Beckles are alleged to be the servants or agents of Taylor. The
writ complains of two trespassesone in the month of August 1956, by the respondent Liverpool in his
capacity as agent or servant, and the other in the month of April 1957, by the defendant Beckles in his
capacity as agent or servant.
The respondents Liverpool case of Payne v British Time Recorder Co, Ltd, & Curtis, Ltd [1921] 2 KB 1,
90 LJKB 445, 124 LT 719, 37 TLR 295, CA, Digest, Practice, 408, 1084), which was decided after the
amendment of the rules, showed that the earlier case of Sadler v Great Western Ry Co ([1896] AC 450, 65
LJQB 462, 74 LT 561, 45 WR 51, 12 TLR 394, HL, Digest, Practice, 403, 1038), which was considered and
followed in Popes v Hawtrey case ((1901), 85 LT 263, 17 TLR 717, CA, Digest, practice, 142, 1276)
would now be decided otherwise and that consequently the old interpretation of the rules was now
entirely altered. There is no doubt that after the year 1921 a more liberal construction was placed on the
rules and that certain of the earlier cases might now be decided differently on their own particular facts. But

this does not mean that the general principles were entirely alteredthere was merely an extension of the
effect of this rule.
The determining factor is still Is there a common question of law or fact? The learned trial judge held
that there is not, and it is contended that he exercised his discretion on wrong principles. With this we
cannot agree. He has clearly applied his mind to the liberal construction placed on the rules since Sadlers
v Great Western Ry Co case ([1896] AC 450, 65 LJQB 462, 74 LT 561, 45 WR 51, 12 TLR 394, HL, Digest,
Practice, 403, 1038) because and Beckles applied to a judge in chambers to have the writ of summons
amended by striking out their names as defendants. The learned judge, after hearing argument, came to
the conclusion that there was no common question of law or fact involved so as to entitle the appellants to
join those two respondents in one action. Against this finding the appellants have appealed.
It was contended on their behalf that the amendment of O 16, r 4, in the year 1896 and the liberal
construction placed upon that rule thereafter, considerably extended the circumstances in which parties
could be joined and that the judge, in relying on the case of Pope v Hawtrey ((1901), 85 LT 263, 17 TLR 717,
CA, Digest, practice, 142, 1276), acted on wrong principles.
The appellants argued that the he made his finding, as stated in his reasons, in spite of the liberal
construction that is now put on those provisions.
In the case of Gower v Couldridge ([1896] 1 QB 348, 67 LJQB 251, 77 LT 707, 46 WR 214, 14 TLR 165,
42 Sol Jo 197, CA, Digest, Practice, 412, 1115), decided after the amendment of the rules, the principles of
Sadler v Great Western Ry Co ([1896] AC 450, 65 LJQB 462, 74 LT 561, 45 WR 51, 12 TLR 394, HL,
Digest, Practice, 403, 1038) were followed, and in the later case of Frankenburg v Great Horseless Carriage
Co ([1900] 1 QB 504, 69 LJQB 147, 81 LT 684, 44 Sol Jo 156, 7 Mans 347, CA, Digest, Practice, 411, 1105),
although joinder was allowed on the particular facts therein, those principles were again approved, Lindley,
M R, in referring to Gowers v Couldridge case ([1896] 1 QB 348, 67 LJQB 251, 77 LT 707, 46 WR 214, 14
TLR 165, 42 Sol Jo 197, CA, Digest, Practice, 412, 1115), saying:
I do not quarrel with that case at all: I think it is perfectly intelligible.
Counsel for the appellants stated that, as in each case there was a trespass across a common
boundary, the common question of fact that arises is in relation to a boundary dispute.

357
While it may be true to say that, as the torts are similar, similar considerations will arise and that, in that
sense, there will be some considerations in common, yet the factual features which, if identical, would raise
a common question of fact, are not the same.
A somewhat similar question arose in the case of Munday v South Metropolitan Electric Light Co, Ltd &
New Gutta Percha Co, Ltd (1913), 29 TLR 346, 57 Sol Jo 427, Digest, Practice, 413, 1121), where there
were two defendants and the torts alleged against them were similar. Swinfen Eadt J, held (following
Sadlers v Great Western Ry Co case ([1896] AC 450, 65 LJQB 462, 74 LT 561, 45 WR 51, 12 TLR 394, HL,
Digest, Practice, 403, 1038)) that the torts were separate and that, as the extent of the damage done and
the liability of each defendant would be separate questions, there could not be joinder of the actions. That
case was decided in 1913.
It seems to us that the same considerations arise here. In this case the torts, although similar, arise out
of separate and distinct circumstances and the liabilities of each respondent may be different. Further, the
two sets of circumstances may have similar features but it is difficult to see how they give rise to a common
question of fact.
It appears to us that the judge had these considerations in mind and we cannot say that he acted on
wrong principles in exercising his discretion:
For these reasons the appeal is dismissed with costs to be taxed.
The judgment is without prejudice to any application that the appellants may make to join one or other
of the respondents in the action.
Appeal dismissed.

(1959) 1 WIR 358

Mazelie v Prescott
SUPREME COURT OF TRINIDAD AND TOBAGOAPPELLATE JURISDICTION
GOMES C J AND CORBIN J
20, 22, 29 MAY, 24 JUNE 1959

Limitation of action Land Recovery of possession Mortgage thereon assigned in 1919 Last payment
thereunder made to assignee in 1933 Invalid conveyance by assignee to respondent in 1945
Supplemental deed of conveyance in 1955 purporting to cure invalidity of first conveyance Present action
for possession instituted in 1956 Extinguishment of mortgagees right and title under the Real Property
Limitation Ordinance, Cap 5, No 7 [T], 16 years after date of last payment.
In the year 1919, a mortgage subsisting on three parcels of land owned by the appellants brother was
assigned to the Roman Catholic Archbishop of Port of Spain to whom the last payment relating to the
mortgage was made in the year 1933. Two of these parcels formed part of the Belle Vue Estate and the
third was situate in the Cantaro district.
Twelve years afterwards, that is to say in the year 1945, the Archbishop as mortgagee purported to convey
by deed the said three parcels of land to the respondent, without obtaining the consent of the Governor as
he was required to do under the Roman Catholic Archbishop Incorporation Ordinance, Cap 301 of 1925 [T],
to make the conveyance valid.
In pursuance of the conveyance, the respondent, according to the finding of the trial court, went to take
possession of the parcel of land in the Cantaro district but found the appellant in occupation thereof. The
respondent made two futile attempts to recover possession from the appellant of the Cantaro parcel

358
by action in the Petty Civil Court, the last action failing because of the invalidity of the conveyance, arising
from the failure of the Archbishop to obtain the consent of the Governor under Cap 301 of 1925 [T].
In 1952, the respondent entered upon and took possession of the two parcels of land forming part of the
Belle Vue estate.
In 1955, the Archbishop obtained the consent of the Governor to convey and thereafter in the same year
executed another deed of conveyance to the respondent, reciting therein, that the presents were
supplemental to the deed of conveyance of 1945.
In 1956 the respondent brought the present action against the appellant for the recovery of the lands forming
part of the Belle Vue estate. The judge of the Petty Civil Court made an order for possession, basing his
judgment on the ground that the supplemental deed of 1955 related back to the conveyance of 1945 and
consequently the respondent had acquired the legal title to the lands in question in 1945. The Petty Civil
Court judge found that the last payment of principal or interest under the mortgage having been made in
1933, only twelve, and not sixteen, years had elapsed since then and consequently the action was not
barred under the Real Property Limitation Ordinance, Cap 5, No 7 [T].
By s 3 of the Roman Catholic Archbishop Incorporation Ordinance, Cap 301 of 1925 [T]:
It shall be lawful for the Roman Catholic Archbishop of Port of Spain and his successors in office, or the
Roman Catholic dignitary for the time being having the supreme ecclesiastical jurisdiction in the Island of
Trinidad in the Roman Catholic Church, from time to time by deed under the seal of the body corporate
above defined, to sell, demise, grant, convey, mortgage, or otherwise dispose of any lands, buildings,
messuages, and hereditaments of what nature or kind soever which shall have been or shall hereafter be
purchased, taken, held, or enjoyed by such corporate body:
Provided always, that no sale or mortgage of any such real property nor any demise for any term exceeding
twenty-one years shall be effected without the consent of the Governor in Executive Council:
Provided also, that it shall be the duty of the said Archbishop, in the annual return made by him of the
expenditure of the annual grant from public funds for ecclesiastical purposes, to specify the application
made by him of the proceeds of any sale or mortgage effected under the powers given by this Ordinance.
By s 12 of the Real Property Limitation Ordinance, Cap 5, No 7 [T]:
It shall and may be lawful for any person entitled to or claiming under any mortgage whereby the legal
estate in the land comprised in the mortgage shall be conveyed to make an entry or bring an action or suit to
recover such land at any time within sixteen years next after the last payment of the principal or interest

money secured by such mortgage, although more than sixteen years may have elapsed since the time at
which the right to make such entry or bring such action or suit shall have first accrued.
By s 22, ibid:
At the determination of the period limited by this Ordinance to any person for making an entry or distress, or
bringing any action or suit, the right and title of such person to the land or rent for the recovery whereof such
entry, distress, action, or suit respectively might have been made or brought within such period shall be
extinguished.
Held: (i) The 1945 conveyance was ineffective because of the failure of the Roman Catholic Archbishop to
obtain the Governors consent to it.
(ii) There was no doctrine or rule of law to support the finding of the Petty

359
Civil Court judge that the conveyance of 1945 was perfected by the subsequent conveyance of 1955.
(iii) The right and title of the Roman Catholic Archbishop as mortgagee having been extinguished at the end
of sixteen years from the last payment, that is to say in the year 1949, by virtue of s 22 of the Real Property
Limitation Ordinance, Cap 5, No 7 [T], there was nothing that he could have conveyed to the respondent in
1955. The respondents action was therefore barred and his claim for recovery of possession must fail.
Appeal allowed.
Case referred to
Perry v Clissold [1907] AC 73, 76 LJPC 19, 95 LT 890, 23 TLR 232, PC, 38 Digest 782, 1155
Appeal
Appeal by the defendant against the decision of the judge of the Petty Civil Court of Port of Spain dated 1
April 1957. The relevant facts and arguments are set out in the judgment of the court.
J A Wharton and R A Noel (instructed by C A Roach) for the appellant
H A S Wooding (instructed by J B Wilson) for the respondent
GOMES CJ delivered the judgment of the court: This is an appeal against the judgment of a judge of the
Port of Spain Petty Civil Court, who made an order against the appellant for the delivery of possession to the
respondent of two parcels of land forming part of the Belle Vue Estate.
For the purposes of this appeal, it is necessary to relate a brief history concerning the land in question.
Prior to and during the year 1916, the appellants brother was the owner in fee simple of three parcels of
land, two of them being the two parcels in question, and the third, a parcel situate in the Cantaro district. In
that year, he executed a deed of mortgage in respect of the three parcels and eventually, ie in the year 1919,
the benefits of that mortgage were assigned to the Roman Catholic Archbishop of Port of Spain, to whom
the last payment relating to it was made in the year 1933.
In the year 1945, the Archbishop conveyed or purported to convey the three parcels of land of the
respondent. At that time, and for a considerable number of years prior thereto, the appellant had been in
possession of the parcel of land at Cantaro. In the following year, 1946, the respondent brought an action
against the appellant to recover possession of the Cantaro land. An order for possession was made by the
judge of the Petty Civil Court, but on appeal that judgment was reversed, because the plaintiff had failed to
prove his title. In the year 1953, the appellant instituted another action against the respondent, but that also
failed, because of the invalidity of the conveyance by the Archbishop to the respondentthe invalidity arising
because the Archbishop did not obtain the consent of the Governor to the conveyance, as required by the
proviso to s 3 of the Roman Catholic Archbishop Incorporation Ordinance, Cap 301 [T] (Volume 10 of the
Laws of Trinidad And Tobago, 1950).
In the year 1955, the consent of the Governor having been obtained, the Archbishop executed another
conveyance of the lands to the respondent. The recitals to that conveyance state that the presents are
supplemental to the purported conveyance of 1945 and that it was through inadvertence that the consent of
the Governor had not been obtained before the 1945 deed was executed.
In the following year, that is to say in 1956, the respondent instituted these further proceedings against
the appellant for the recovery of the two parcels of land forming part of the Belle Vue Estate. Prior to the

trial of the action, the appellant gave notice by way of special defence that he would rely, inter alia, on the
provisions of the Real Property Limitation Ordinance, Cap 5, No 7 [T]. The trial judge, however, gave
judgment for the respondent, basing his judgment

360
on the ground that the supplemental deed of 1955 related back to the conveyance of 1945, with the
result, in his view, that the plaintiff had acquired the legal title to the lands in the year 1945, and that, the last
payment of principal or interest under the mortgage having been made in the year 1933, only 12 years had
elapsed, and not the 16 which, by virtue of the Ordinance, would have precluded the bringing of the action.
He found that the appellant had failed to show title and that he did not give evidence of long possession.
The judge also found that the respondent went into possession of the land in 1945, and the appellant in
1952.
Counsel for the appellant submitted that the 1945 conveyance to the respondent was invalid; that entry
into possession, if in fact there was any, was solely by virtue of the 1945 conveyance and was therefore of
no avail; that the right and title of the Archbishop to the land were, by virtue of s 12 of Cap 5, No 7 [T],
extinguished sixteen years after the date of the last payment in the year 1933, that is to say in the year
1949, and, consequently, no action to recover the land could be brought after that year by the Archbishop or
any person claiming through him, ie the respondent.
In reply, counsel for the respondent submitted that the events which took place in the year 1945
amounted, in law, to a taking or resumption of possession by the mortgage and that, in fact, the magistrate
found that the respondent did enter into possession of the land in that year; and, therefore, the effect of that
resumption or entry into possession was to put an end to any prescriptive right that was accruing. Further,
that the mere passage of time does not defeat a mortgagees title and that the onus of proving that the
mortgagees title has been extinguished is on the appellant.
In the first place, perhaps we should say a word about the conveyance or purported conveyance by the
Archbishop to the respondent in the year 1945. Counsel for the respondent did not seek to uphold the
validity of that conveyance but, as the judge held the view that the 1955 conveyance related back to it and
perfected it, and made that the basis of his finding that in 1945 the respondent had acquired title to the land,
we consider that we should deal with the question. It is sufficient to say, however, that the 1945 conveyance
was ineffective because of the failure to obtain the Governors consent to it, and there is no doctrine or rule
of law to support the judges finding that it was perfected by the subsequent conveyance.
There is no doubt the appellant was in occupation of the Cantaro land in 1945, and of the Belle Vue
lands in 1952. The judges finding that the respondent went into possession of the Belle Vue lands in 1945
was based merely on a statement in evidence by the respondent that when he bought the lands from the
Archbishop in 1945, he went into possession. We doubt whether there was any actual entry into possession
by the respondent in that year, but whether or not there was, there is no evidence that he continued in
occupation. Further more, if he did enter into possession, his entry was purely in a capacity as a purchaser
from the mortgagee, which in law and in fact he was not. In any event, the evidence, including the
respondents, reasonably indicates that the appellant went into occupation of the Belle Vue lands in the year
1952, and it is as a result of the appellants continuance in possession of those lands and of his refusal to
quit that this action has been brought.
Counsel for the respondent urged that the execution of the 1945 conveyance, even though ineffective,
amounted in law to a resumption of possession on the part of the mortgagee and therefore interrupted any
prescriptive title that was accruing. This point does not arise as the appellant was not in possession in 1945.
The real question to be determined is whether under the provisions of the Real Property Limitation
Ordinance the mere passage of time extinguishes a

361
mortgagees right and title. The answer is to be found in s 22, which is as follows:
22. At the determination of the period limited by this Ordinance to any person for making an entry
or distress, or bringing any action or suit, the right and title of such person to the land or rent for the
recovery whereof such entry, distress, action, or suit respectively might have been made or brought
within such period shall be extinguished.
It is quite clear that the words any person in that section include a mortgagee, for otherwise s 12
would not have been enacted. Section 12 expressly extends, in the case of a mortgagee, the normal time
after the expiration of which an action would be barred by providing that, where payment of the principal or
interest is made, time shall begin to run from the date of the last payment, although more than sixteen years
have elapsed from the date of the mortgage.
The scheme and provisions of the Ordinance make it clear that it is one of general application and that
the only exceptions and deviations from its prescription and its limitation on the time within which an action
to recover real property may be brought, and from the legal consequence that arises after that time limit is
spent, are expressly stated in it.

Indeed, even in the case of a tenancy at will, where no action could be brought until lawful possession
under the tenancy was determined, yet, nevertheless, s 8 of the Ordinance specifically brought such a case
within its ambit. This extended measure clearly illustrates the intention of the legislature that passage of the
time prescribed by it will defeat any title.
In the case of Perry v Clissold ([1907] AC 73, 76 LJPC 19, 95 LT 890, 23 TLR 232, PC, 38 Digest 782,
1155), where a squatter, ie a stranger without any right or title, took possession of land which had no
apparent owner and had remained in occupation for only half of the period prescribed, Lord Macnaghten, in
delivering the opinion of the Board, said, inter alia ([1907] AC at p 79):
It cannot be disputed that a person in possession of land in the assumed character of owner and
exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but
the rightful owner. And if the rightful owner does not come forward and assert his title by process of
law within the period prescribed by the provisions of the Statute of Limitations applicable to the case,
his right is for ever extinguished, and the possessory owner acquires an absolute title.
The court fully appreciates the difficult questions of law that often arise from the operation of the
provisions of the Ordinance, for example, the devolution of the legal estate, but it is not called upon to
express any opinions on such matters in this case. The sole question for determination is whether the
respondent, who is a person claiming through the mortgagee, is barred from making an entry or bringing this
action.
In the result it follows that the Archbishops title as mortgagee was extinguished about six years prior to
the 1955 conveyance, and there was therefore nothing for him to convey, and, as the respondents claim is
derived through a title which has been extinguished, the action is barred and his claim fails.
The appeal is allowed with costs to be taxed and the judgment of the Petty Civil Court set aside.
Appeal allowed.

362
(1959) 1 WIR 363

Seesahai v Mangaree
SUPREME COURT OF TRINIDAD AND TOBAGOAPPELLATE JURISDICTION
GOMES C J AND CORBIN J
12 MAY, 24 JUNE 1959

Landlord and tenant Tenant at will Recovery of possession Necessity for landlord to prove title
Occupation by tenant for more than 16 years Oral demand to quit before expiry of the period of limitation
Whether tenancy determined Time when cause of action first accrued Real Property Limitation
Ordinance, Cap 5, No 7 [T] ss 3 and 8.
During the latter part of the lifetime of the appellants father the respondent lived with the father as his wife in
a house on a parcel of land. Following the fathers death in 1936, the respondent continued in occupation
thereof and thereafter S, the brother of the appellant, became possessed of the land which he conveyed to
the appellant by deed in the year 1953.
In the year 1944 and from time to time thereafter, S requested the respondent to leave the land without avail.
The last of such requests was made by S in the year 1949.
On 16 April 1956, the appellant commenced an action for possession against the respondent. The judge of
the Petty Civil Court, Tunapuna, found that the respondent had been in occupation of the land as a tenant at
will since the year 1936 and that by virtue of the provisions of the Real Property Limitation Ordinance, Cap
5, No 7 [T], the respondent had established in herself a right and title to the land.
By s 3 of the Real Property Limitation Ordinance, Cap 5 No 7 [T].
o person shall make an entry or distress, or bring an action to recover any land or rent, but within sixteen
years next after the time at which the right to make such entry or distress, or to bring such action, shall have
first accrued to some person through whom he claims, or if such right shall not have accrued to any person

through whom he claims then within sixteen years next after the time at which the right to make such entry
or distress, or to bring such action, shall have first accrued to the person making or bringing the same.
By s 8, ibid.:
hen any person shall be in possession or in receipt of the profits of any land, or in receipt of any rent, as
tenant at will, the right of the person entitled subject thereto, or of the person through whom he claims, to
make an entry or distress, or bring an action to recover such land or rent, shall be deemed to have first
accrued either at the determination of such tenancy, or at the expiration of one year next after the
commencement of such tenancy, at which time such tenancy shall be deemed to have determined.
Held: (i) To succeed in an action for the recovery of land against his tenant, the landlord is not required to
prove his title.
(ii) Anything which amounts to a demand of possession by the landlord, although not expressed in precise
language, is sufficient to indicate the determination of the landlords will and to terminate a tenancy at will.
(iii) As the action to recover possession was commenced after the tenancy of the respondent had been
determined and before the lapse of the time within which it could have been brought the appellant was
entitled to judgment. Statement in Hill And Redmans Law Of Landlord And Tenant, 10th Edn, p 20,
approved.
Appeal allowed.
No cases referred to.

363
Appeal
Appeal by the plaintiff against the decision of a judge of the Petty Civil Court, Tunapuna, dated 29 January
1958. The relevant facts and arguments are sufficiently set out in the judgment of the court.
Sir Courtenay Hannays QC and JC Castillo (instructed by E E Pollard) for the appellant
H A S Wooding (instructed by A K Fitzpatrick) for the respondent
Cur adv vult
GOMES CJ delivered the judgment of the court: This is an appeal against the decision of the judge of the
Tunapuna Petty Civil Court, who gave judgment for the respondent in an action brought by the appellant for
the recovery of a certain parcel of land.
The judge found, and in our view rightly so, that the respondent had been in occupation of the land as a
tenant at will since the year 1936. He then determined that that fact, by virtue of the provisions of the Real
Property Limitation Ordinance, Cap 5, No 7 [T], established a right and title to the land in the respondent.
At the hearing of this appeal, counsel for the appellant submitted that the decision was wrong because
the judge failed to give any consideration to the evidence of determination of the tenancy before the full
prescriptive period had run. It is sufficient to say that the omission to do so clearly appears from the judges
reasons for decision.
Counsel for the respondent, however, submitted that in an action for the recovery of land, a claimant
must establish his title to the land and that the appellant had failed to do so. In reply to that submission,
counsel for the appellant contended that that rule does not apply where the relationship of landlord and
tenant obtains, as in this case.
We agree with this last contention, for it is a well-established general rule, that a tenant cannot dispute
his landlords title while that title subsists. It is that principle which prevents a landlord from being called
upon by a tenant to prove his title. (See Fors Landlord And Tenant, 10th Edn, at p 521).
The only question to be decided, therefore, is whether there is any, or any sufficient, evidence of any
determination of the tenancy such as to disturb or break the prescriptive right that was accruing to the
respondent over the years.
The evidence discloses that, during the latter part of the lifetime of the appellants father, the respondent
lived with him as his wife in a house on the land, and she continued in occupation after his death in 1936.
Thereafter the appellants brotherSurejpaulbecame possessed of the land which, in the year 1953, he
transferred to the appellant by Deed No 8452 of 1953.

The appellant testified that as far back as the year 1944, his brother asked the respondent to leave the
land and that she was willing to do so, but her son was not; that his brother renewed his requests to her to
do so from time to time without avail and that on one occasion about four years before he, the appellant,
acquired the landthat would be about the year 1949a further request by Surejpaul brought upon him a
good beating by the respondent and her son.
Counsel for the appellant relied on these facts to show that the respondents tenancy had been
determined on more than one occasion, that is to say, on each occasion that the respondent was asked or
told to leave the land, notably in the years 1944 and 1949; and that, as no evidence was given in defence of
the suit and as the evidence in regard to the terminations of the tenancy was not subject to cross
examination, the appellant had established a prima facie case to preclude the invocation of the Real
Property Limitation Ordinance [T].
As stated in Hill And Redmans Law Of Landlord And Tenant, 10th Edn, at p 20:
Anything which amounts to a demand of possession, although not expressed in precise and formal
language, is sufficient to indicate the determination of the landlords will.

364
Here there is evidence, which has not been controverted, of the determination of the tenancy and, as
the action was commenced on 16 April 1956, the time within which it could be brought had not elapsed. The
appellant therefore is entitled to judgment. The appeal is allowed, with costs to be taxed.
Appeal allowed.

(1959) 1 WIR 365

Nathaniel Joseph v R
COURT OF APPEAL FOR THE WINDWARD ISLANDS AND LEEWARD ISLANDSCRIMINAL JURISDICTION
HENRIQUES C J, WILLS AND ALLEYNE JJ
20 JANUARY 1959

Criminal law Murder Bias of examining magistrate Validity of committal and trial.
The appellant was committed for trial by a magistrate who, before assuming that office, had been Legal
Assistant to the AttorneyGeneral. At the date of the appellants arrest, the Legal Assistant advised further
investigation of the circumstances which formed the basis of the charge against the appellant, and,
subsequently, the appellants prosecution on a charge of murder. The appellant was later convicted and
sentenced to death. He appealed against his conviction on the ground that the indictment on which he was
convicted was a nullity by reason of the fact that the examining magistrate, when he was Legal Assistant,
had advised further investigation in the matter and his subsequent prosecution on the said charge, and,
consequently, was disqualified in law for sitting as examining magistrate at the preliminary hearing of the
charge.
Held: mere foreknowledge of, or previous participation in, a matter, will not disqualify in law, and, in the
circumstances, the magistrate was not disqualified for sitting as examining magistrate at the preliminary
hearing of the offence with which the appellant was charged.
Appeal dismissed.
Editorial Note. The point argued on the appeal was not raised at the trial. Cases referred to
R v Carden (1879), 5 QBD 1, 49 LJMC 1, 41 LT 504, 44 JP 137, 28 WR 133, 14 Cox CC 359, 14 Digest
(Repl) 225, 1879
Cox v Coleridge (1822), 1 B & C 37, 2 Dow & Ry KB 86, 1 Dow & Ry MC 142, 107 ER 15, 14 Digest (Repl)
225, 1876
Thellusson v Rendlesham, Thellusson v Thellusson Hare v Robarts (1859), 7 HL Cas 429, 28 LJ Ch 948, 11
ER 172, sub nom Thellusson v Robarts, Hare v Robarts, Rendlesham v Robarts, 33 LOTS 379, 5 Jar
NS 1031, HL, 30 Digest (Repl) 219, 626
R v Powell [1953] 2 All ER 1202, 118 JP 15, 97 Sol Jo 782, 37 Cr App Rep 185, CCA, 3rd Digest Supp
R v Sussex JJ, Ex p McCarthy [1924] 1 KB 256, 93 LJKB 129, 88 JP 3, 68 Sol Jo 253, 22 LGR 46, sub nom
R v Hurst, Ex p McCarthy, 130 LT 510, 40 TLR 80, 27 Com CC 590, DC, 33 Digest 294, 97

R v Camborne JJ, Ex p Pearce [1954] 2 All ER 850, [1955] 1 QB 41, [1954] 3 WLR 415, 118 JP 488, 98 Sol
Jo 577, DC, 3rd Digest Supp

365
R v Rand (1866), LR 1 QB 230, 35 LJMC 157, 7 B & S 297, 30 JP 293
Appeal
Appeal against conviction by Nathaniel Joseph who was convicted before the Supreme Court of the
Windward Islands and Leeward Islands (Antigua Circuit) on 28 October 1958, of the murder of Percival
Joseph on 7 June 1958, and sentenced to death. The facts appear in the judgment.
E E Harney for the appellant
W E Jacobs Attorney-General and C O R Phillips for the respondent
HENRIQUES CJ delivered the judgment of the court: The appellant in this case was convicted at the
Antigua Circuit on 28 October 1958, of the murder of one Percival Joseph. In view of the point which has
been taken on this appeal, it is only necessary to state the facts very shortly. On the day of the fatality, 7
June there was a quarrel between one Mary Cole, sister of the deceased Percival Joseph, and the father of
the appellant. It was alleged that during this quarrel, the appellants father had ill-treated Cole and when the
deceased came home and heard of this he began quarrelling. The deceased passed through his mothers
yard and came on to the main road followed by his wife and his mother.
The appellant was then seen to come from the direction of the house of one Hermie Brown into the
main road. The two men met at a spot in the road and exchanged words. The appellant said to the
deceased, If you was here, what you would do, do it now. Thereupon the deceased pushed the appellant,
and said, Little boy come out of my face, me and you not company.
The appellant then came to where the deceased was standing. The deceased pushed him away. The
appellant then went up to the deceased again, this time with a knife and stabbed the deceased in his right
side.
Shortly after, the deceased died and, according to the medical evidence, he had received a wound
which had penetrated the skin, the interlaying layers of tissue underneath the skin, and finally punctured the
right lobe of the liver.
At the trial it was contended by the appellant that the deceased was the aggressor and that the fatal
blow was struck while the appellant was labouring under the stress of provocation induced by some act of
the deceased upon the appellant, which, if the jury so found, would have entitled them to have returned a
verdict of manslaughter instead of murder. The learned trial judge, exercising his discretion, left the issue of
provocation to the jury, although, on the state of the evidence, it was clearly open to him as a matter of law
to have directed the jury that the evidence did not support a verdict of manslaughter, and to have withdrawn
that issue from them. It is therefore not surprising that no criticism has been levelled in this court against the
summing-up of the learned trial judge. What has been contended in this court is that the entire trial was a
nullity, as the learned magistrate who conducted the preliminary inquiry into the charge against the appellant
had been legal assistant on 7 June 1958, the date of the arrest of the appellant, and as such had advised
further investigation in the matter and subsequently advised prosecution of the appellant on a charge of
murder; that the said magistrate having so advised was disqualified in law from sitting as magistrate on the
preliminary hearing of the case.
Counsel for the appellant, before embarking upon his argument, intimated that he intended to call as a
witness the magistrate who conducted the preliminary inquiry, to testify in support of the allegations
contained in his notice of appeal. The court inquired of counsel for the appellant whether he had filed any
notice of his intention and given any particulars of the evidence to the respondent. Counsel for the appellant
referred to a notice dated 12 January 1959, filed with the Registrar. After argument it was conceded by
counsel that his application to call a witness did not conform with r 50 of the Court of Appeal Rules, 1940
[WL], in that it did not furnish the court with material upon which it

366
might determine that good cause existed for an order to issue. Pending the filing of the necessary
affidavits for which an opportunity would, if required, be made available counsel was permitted to proceed
with the argument that assuming the allegations contained in the notice of appeal to be borne out by the
evidence, the ground of appeal was maintainable in law. It was contended that the magistrate had an
interest such as would disqualify him from holding the preliminary inquiry, in that he had previously advised
the prosecution. Counsel contended that the criterion was whether justice was seen to be done, and that
justice was not seen to be done when the magistrate was in the position of prosecutor and judge. He
argued that the magistrate was required to exercise a judicial discretion when deciding whether or not a
prima facie case had been made out but that in the particular circumstances the magistrate had precluded
the exercise of his discretion having already determined the question when advising a prosecution. The

committal was therefore a nullity. Counsel stated that he was unable to find any case in the books in which
bias had been alleged on the part of an examining justice or magistrate and in this he was supported by the
learned Attorney-General on behalf of the respondent.
In order to consider the relevance of bias in this connection it is essential to recognise the true nature of
the function of an examining magistrate. In 10 Halsburys Laws (3rd Edn), p 359, para 656, the principle is
stated as follows:
The object of the examination is not to determine the guilt or innocence of the accused, but to
inquire whether the accused ought or ought not to be committed for trial.
Cockburn CJ, in R v Carden ((1879), 5 QBD 1, 49 LJMC 1, 41 LT 504, 44 JP 137, 28 WR 133, 14 Cox
CC 359, 14 Digest (Repl) 225, 1879) ((1879), 5 QBD at p 6) says in his judgment:
The duty and province of the magistrate before whom a person is brought, with a view to his being
committed for trial or held to bail, is to determine, on hearing the evidence for the prosecution and that
for the defence, if there be any, whether the case is one in which the accused ought to be put upon
trial. It is no part of his province to try the case.
In Cox v Coleridge ((1822), 1 B & C 37, 2 Dow & Ry KB 86, 1 Dow & Ry MC 142, 107 ER 15, 14 Digest
(Repl) 225, 1876) (1 B & C at p 50), Bayley J, had this to say:
I think that a magistrate is clearly bound in the exercise of a sound discretion not to commit anyone
unless a prima facie case is made out against him by witnesses entitled to a reasonable degree of
credit.
The function of the justices therefore is not to balance the evidence and decide accordingly as it
predominates, for this would be, in fact, the taking upon themselves the function of a petty jury and be trying
the case. But they should consider whether or not the evidence makes out a strong or probable or even a
conflicting case of guilt, in any one of which case they should commit for trial.
Now to turn to interest or bias, upon which ground it is claimed that the magistrate was disqualified from
taking the preliminary hearing. It is agreed that there is no question in this case of pecuniary interest.
Thellusson v Rendlesham Thellusson v Thellusson Hare v Robarts (1859), 7 HL Cas 429, 28 LJ Ch 948, 11
ER 172, sub nom Thellusson v Robarts, Hare v Robarts, Rendlesham v Robarts, 33 LOTS 379, 5 Jar NS
1031, HL, 30 Digest (Repl) 219, 626) makes reference to a circumstance which counsel for the appellant
may consider not entirely dissimilar from those confronting him. The headnote reads in part as follows:
A counsel in a cause, being after wards raised to the Bench, is not thereby precluded from taking
part in the hearing and discussion of that cause, but he may properly (unless his doing so would entail
great inconvenience and expense on the parties, or perhaps from his being, as in Chancery, the sole
judge of the court, amount to a denial of justice) decline to take part in such hearing and decision.

367
From the highest authority that is the rule applicable to civil cases. In the case of R v Powell ([1953] 2
All ER 1202, 118 JP 15, 97 Sol Jo 782, 37 Cr App Rep 185, CCA, 3rd Digest Supp) the chairman of the
examining magistrates who committed the appellant for trial was also Deputy Chairman of Quarter Sessions
and there sentenced the applicant. It was held that where a prisoner was committed by a court of summary
jurisdiction of which either the chairman or the deputy chairman of the quarter sessions was the chairman, it
was desirable that neither of those persons should sit in the court of quarter sessions before whom came the
person committed, but there was no reason in law why they should not so sit and if they did, it was not a
ground on which the Court of Criminal Appeal could interfere with the conviction or sentence at Quarter
Sessions. The foregoing cases illustrate that mere foreknowledge of or previous participation in a matter will
not disqualify in law. In stating what he insisted to be the criterion for deciding whether a justice was
disqualified by interest, counsel was making perhaps an indirect reference to the dictum of Lord Hewart CJ,
in R v Sussex JJ, Ex p McCarthy ([1924] 1 KB 256, 93 LJKB 129, 88 JP 3, 68 Sol Jo 253, 22 LGR 46, sub
nom R v Hurst, Ex p McCarthy, 130 LT 510, 40 TLR 80, 27 Com CC 590, DC, 33 Digest 294, 97) ([1924] 1
KB at p 259), that it is of fundamental importance that justice should not only be done but should manifestly
and undoubtedly be seen to be done.
We refer to the comment of the court in R v Camborne JJ, Ex p Pearce ([1954] 2 All ER 850, [1955] 1
QB 41, [1954] 3 WLR 415, 118 JP 488, 98 Sol Jo 577, DC, 3rd Digest Supp) ([1954] 2 All ER at p 855), that
the frequency with which allegations of bias have come before the courts in recent times seems to indicate
that the dictum

is being urged as a warrant for quashing convictions or invalidating orders on quite unsubstantial
grounds and, indeed, in some cases, on the flimsiest pretexts of bias.
Earlier in the same judgment Slade J, reading the judgment of the Divisional Court, states the principle
([1954] 2 All ER at p 855):
In the judgment of this court the right test is that prescribed by Blackburn J, in R v Rand ((1866),
LR 1 QB 230, 35 LJMC 157, 7 B & S 297, 30 JP 293), namely, that to disqualify a person from acting in
a judicial or quasi-judicial capacity on the ground of interest (other than pecuniary or proprietary) in the
subject-matter of the proceeding, a real likelihood of bias must be shown.
The question before us is therefore whether there was real likelihood of bias. At the close of his
argument counsel for the appellant admitted that he could not urge that there was any real likelihood of bias.
With this view we are entirely in accord. Counsel indicated that he no longer desired to file an affidavit. The
appeal is accordingly dismissed.
Appeal dismissed.
E E Harney (for the appellant), COR Phillips, Legal Assistant (for the respondent).

368
(1959) 1 WIR 369

Laforest v Cargill
FEDERAL SUPREME COURTORIGINAL JURISDICTION
CLARKE REFISTRAR
20 MAY, 3 JUNE 1959

Costs Taxation Whether fees to third counsel should be allowed.

Where three counsel appeared for a respondent to resist a petition which sought to declare his seat in the
House of Representatives vacant and the facts to support the petition were agreed upon,
Held: that the case was not a special one when judged from its pecuniary magnitude, bulk, length or
intricacy and therefore fees for a third counsel should not be allowed on a party and party taxation of the
costs.
Taxation accordingly.
Cases referred to
Smith v Buller (1875), LR 19 Eq 473, 45 LJ Ch 69, 31 LT 873, 23 WR 332, Digest, Practice, 948, 4882
Re Le May, Le May v Welch [1885] WN 180, Digest, Practice, 937, 4772
R v Board of Education (1910), 26 TLR 429
Re A-G v Smith (WH) & Son (1910), 103 LT 96
Kirkwood v Webster (1878), 9 Ch D 239, 26 WR 812, Digest, Practice, 937, 4771
Leonhardt & Co v Kalle & Co (1895), 12 RPC 103
Wilson v Wilson Brothers Bobbin Co, Ltd (1911), 28 RPC 741
A-G v Birmingham, etc, Drainage Board (1908), 52 Sol Jo 855, Digest, Practice, 938, 4779
Perry & Co, Ltd v Hessin (T) & Co (1913), 108 LT 332, 57 Sol Jo 302, 30 RPC 193, Digest, Practice, 957,
4972
Begbie v Fenwick, Fenwick v Begbie (1871), 8 Ch App 1079, n, 24 LT 58, 19 WR 402, revsd 25 LT 441, L JJ
Denaby & Cadeby Main Collieries, Ltd v Yorkshire Miners Assocn (1907), 23 TLR 635, 637, Digest,
Practice, 954, 4947
Pearce v Lindsay (1860), 1 De G F & J 573, 576, John 702, 2 LT 169, 8 WR 383, 45 ER 483, CA, Digest,
Practice, 937, 4762
A-G v Munro (1848), 2 De G & Sm 122, 11 LTOS 348, 12 Jur 210, 64 ER 55, affd 13 LTOS 521, LC, 1 Mac &
G 213
Peel v London & North Western Ry Co (No 2) [1907] 1 Ch 607, 76 LJ Ch 379, 96 LT 498, 51 Sol Jo 325,
Digest, Practice, 947, 4874

Petition
Petition for allowance of fees to third counsel.
Boucaud (instructed by Wong and Sanguinette) for the respondent
Sanguinette (instructed by J D Sellier & Co) for the petitioner
CLARKE (Registrar). This allowance is exceptional; the employment of a third counsel is an unusual
expense and its necessity must in every case be shown by the party claiming it. Further, it requires a very
strong case to induce the court to sanction the fees of more than two counsel in taxation as between party
and party where two counsel would have been sufficient to conduct it. (Smith v Buller ((1875), LR 19 Eq
473, 45 LJ Ch 69, 31 LT 873, 23 WR 332, Digest, Practice, 948, 4882). It is more than doubtful whether, in
a case in which it was not absolutely necessary but extremely useful, the expense would be allowed; the
statement in Re Le May, Le May v Welch ([1885] WN 180, Digest, Practice, 937, 4772), that their
employment must be shown to be essentially necessary to do justice to the case, is more in harmony with
the principles governing allowances in general.
Most of the authorities on this point incline to the view that this is a decision peculiarly left to the Taxing
Master.
In an application for costs of three counsel before the Court of Appeal in

369
R v Board of Education ((1910), 26 TLR 429), the Master of the Rolls said, that is for the Taxing
Master. Neville J, in an application for costs of three counsel in Re A-G v Smith (WH) & Son ((1910), 103
LT 96), said, Yes, I think it is a case in which three counsel should be allowed.
The decision to retain three counsel is a matter which has to be determined before the parties come into
court and should, therefore, fall within the category of preparation for the trial which is a subject specially
for the decision of the Taxing Master.
On the whole it seems that the matter is one which is in the Taxing Masters discretion in the first
instance, that the extent to which that discretion will be reviewed because one judge (eg, Neville J, alone)
differs in opinion is at present somewhat uncertain, and that the decision of the Taxing Master will not
ordinarily be upset except where he has arrived at his decision on some wrong principle or based himself on
wrong considerations.
The allowance or disallowance must, therefore, necessarily be considered carefully in order to exercise
judiciously on correct principles a discretion peculiarly left to the Taxing Master having regard to the fact that
this is a matter of considerable importance to the parties, involving not only fees paid to such counsel but
also an additional set of papers.
The criterion applied by Fry J, in Kirkwood v Webster ((1878), 9 Ch D 239, 26 WR 812, Digest, Practice,
937, 4771) (1878), 9 Ch D 239, 26 WR 812, Digest, Practice, 937, 4771), namely, that three counsel should
be allowed if the case is one in which a reasonable and prudent man, acting with ordinary prudence, would
not have ventured to come into court without them, involves factors so indeterminate as to deprive it of
practical utility and really amounts to no more than was said in Smith v Buller ((1875), LR 19 Eq 473, 45 LJ
Ch 69, 31 LT 873, 23 WR 332, Digest, Practice, 948, 4882).
It is almost hopeless to attempt to define the cases in which three counsel ought to be allowed. Indeed,
as Chitty J, observed in Leonhardt & Co v Kalle & Co ((1895), 12 RPC 103):
The question is one in which precedents are of no use, and each case must be considered on its
own merits. There are, however, certain matters which ought to be taken into consideration in every
case, since, though no one reason by itself may be necessarily sufficient to carry the allowance, a
combination of two or more may be. They are: the nature of the case itself, the court before which it
comes, and the particular persons employed in it.
I shall now proceed to reach a decision taking this statement as a guide.
With regard to the nature of the case itself:
In Wilson v Wilson Brothers Bobbin Co, Ltd ((1911), 28 RPC 741), Parker J, said: The case must be a
special one and must possess at least two of the features of commercial importance, pecuniary magnitude,
bulk, length and intricacy to an abnormal degree. A third counsel will not be allowed because there would
have been nothing particularly imprudent if the party had gone into court with only two.
Further, neither difficulty apart from complication, nor length of trial, nor scientific evidence, nor the fact
that the employment of a third counsel is beneficial to the party, is sufficient to carry the allowance against
an adverse litigant. (A-G v Birmingham, etc, Drainage Board ((1908), 52 Sol Jo 855, Digest, Practice, 938,
4779) and Perry & Co v Hessin (T) & Co ((1913), 108 LT 332, 57 Sol Jo 302, 30 RPC 193, Digest, Practice,
957, 4972).

Complication is not equivalent to length, it must be such as requires unusual mental exertion in
following up and unravelling the facts. (Begbie v Fenwick Fenwick v Begbie ((1871), 8 Ch App 1079, n, 24
LT 58, 19 WR 402, revsd 25 LT 441, L JJ).
Finally on this point the clearest reason for allowing three counsel on account of the nature of the case
would seem to be that which arises from the physical or mental capacities of the normal leading counsel.
Applying these principles to the instant case it cannot be said that there was great complexity and
difficulty involving an extraordinary amount of labour and

370
responsibility as well as an extraordinarily diffioult question of law (ie, contract or the interpretation of
the statute) or that the hearing lasted an unusual length of time. This is particularly so because the facts
were agreed, no evidence was taken and the trial proceeded on legal argument alone. There was much
decided authority and learning available to counsel on the two issues in this case and I am of the opinion
that the nature of the case alone is not a sufficient ground for allowing three counsel.
With respect to the particular court in which the case was heard:
It has been held that in the Court of Appeal the case is on paper and only two counsel can be heard and
that there is no reason why two counsel cannot master the material and present the whole case to the court
(per Buckley LJ, in Denaby and Cadeby Main Collieries, Ltd v Yorkshire Miners Association Ltd v Yorkshire
Miners Assocn ((1907), 23 TLR 635, 637, Digest, Practice, 954, 4947). Ideed, three counsel are rarely
allowed unless (as in Pearce v Lindsay ((1860), 1 De G F & J 573, 576, John 702, 2 LT 169, 8 WR 383, 45
ER 483, CA, Digest, Practice, 937, 4762) considerable additional evidence is introduced or where an
enormous mass of evidence has to be designed, noted, tabulated and classified. In the light of the leading
authorities and applying them to this case, I am unable to allow a third counsel on this ground alone.
With regard to the importance of the case to the parties:
This is a further consideration which should be taken into account in arriving at a decision. There is
much authority for allowing two counsel only when the case is one of great importance to persons other than
the mere parties to the proceedings (and even fees to two junior counsel have been allowed), and although
the importance of this case not only to the parties but also to the public would ordinarily have persuaded me
that three counsel should be allowed, I can do no better than follow Malins V-C, in Smith v Buller ((1875), LR
19 Eq 473, 45 LJ Ch 69, 31 LT 873, 23 WR 332, Digest, Practice, 948, 4882), where he refers to the general
rule as enunciated by Lord Cottenham in A-G v Munro ((1848), 2 De G & Sm 122, 11 LTOS 348, 12 Jur 210,
64 ER 55, affd 13 LTOS 521, LC, 1 Mac & G 213), in which, though one of the most important cases which
ever came before the court, he considered that there was no justification for allowing three counsel.
The general rule, that, for the purposes of taxation as between party and party, only two counsel can be
allowed as against an adverse party, will not be departed from except under very special circumstances.
In Peel v London & North-Western Ry Co ((No 2) [1907] 1 Ch 607, 76 LJ Ch 379, 96 LT 498, 51 Sol Jo
325, Digest, Practice, 947, 4874) it was held that the fact that a case is legally and commercially important,
and that large public interests are involved, is not sufficient to justify the employment of a third counsel
where there is no dispute as to the facts. On this ground alone I can find no authority for allowing three
counsel.
I find myself, therefore, compelled to decide against the allowance of three counsel and allow one
leading counsel from the inner bar and junior counsel.
With regard to quantum: This is again peculiarly and essentially a matter for the decision of the Taxing
Master and his decision will not be reviewed by a Court of Appeal unless he has decided not on the question
of propriety but on some extraneous consideration. The solicitors for the parties, when briefing counsel,
must of necessity have considered what should be a proper fee to be paid to leading counsel on brief even
though counsel may have requested and been paid a larger fee. The Taxing Master must consider (a) what
costs chargeable under a taxation as between party and party should be necessary to enable the adverse
party to conduct the litigation, and no more. Any charges merely for conducting litigation more conveniently
may be called luxuries, and must be paid by the party incurring them (per Malins V-C, in Smith v Buller
((1875), LR 19 Eq 473, 45 LJ Ch 69, 31 LT 873, 23 WR 332, Digest, Practice, 948, 4882)); and (b) the
practice obtaining in the particular jurisdiction and the fees allowed on taxation in similar cases.
This case is the first of its kind in the Federal Supreme Court in which its original and not the appellate
jurisdiction has been invoked. Nevertheless, there have been several like cases on the construction of
statutes and of contracts in the Superior Court of this Territory and fees usually allowed on taxation in such
cases should, I consider, be a guide to me in arriving at a decision. From

371
my own experience of 20 years which covers specialising in the practice of the Supreme Court and
instructing counsel in several important cases on the construction of statutes and contracts, and election
petitions, and also having had the experience of a Taxing Master not only within the local jurisdiction but in
the wider jurisdiction exercised by this Honourable Court, I feel that I am in a very happy position to come to
a decision and to set a standard with respect to appearances in the Federal Supreme Court sitting in its
original jurisdiction. Applying the considerations which are set out above and in the light of the decided

authorities as to what should exercise the mind of the Taxing Master in making such allowances, I have
come to the conclusion after much consideration that a reasonable fee to be allowed to leading counsel as
fee on brief in this case is one hundred guineas; junior counsel will be entitled to the usual two-thirds of this
fee. I shall allow a further fee of fifty guineas to leading counsel for consultations and conferences settling
facts to be agreed and on the case generally. Junior counsel will get his two-thirds.
The next point for decision is the allowance of refreshers.
The allowance of refresher fees is governed by the R S C [U K], O 65, r 27 (48), which is as follows:
As to refresher fees, when any cause or matter is to be tried or heard upon viva voice evidence in
open court, if the total time occupied by the trial whether wholly on the first day or partly on that day
and partly on any subsequent day or days shall exceed a period of five hours the taxing master may in
respect of the excess allow for every complete period of five hours (if any) and for any less period not
included in any such complete period the following fees:
To the leading counsel ... ... ... from 5 to 10 guineas
To the second... ... from 3 to 7 guineas
To the third (if three) ... ... from 2 to 5 guineas
The like allowance may be made where the evidence in chief is not taken viva voce, if the trial or
hearing shall be substantially prolonged beyond such period of five hours, to be so computed as
aforesaid, by the cross-examination of witnesses whose affidavits or depositions have been used.
The use of the word refresher has, however, been popularly extended to the additional daily fees paid
to counsel in respect of a prolonged hearing. These daily refreshers originated at common law and arose
from the fact that although the instructing solicitor would estimate the proper brief fee for supporting his own
clients case he had no means of estimating the work which would be necessary to meet his opponents
evidence. The witnesses on the other side ought to be exceedingly numerous, and the fee marked on his
counsels brief quite inadequate, not only to the fee marked on his opponents, but to the labour of crossexamination. The brief fee is normally supposed to cover one days conduct of the case (of five hours,
excluding the luncheon interval) in court and all speeches of counsel, but where the examination of
witnesses occupies more than one day additional fees are very reasonably demanded and paid. Refreshers
were not, however, allowed in Chancery where the evidence was all on paper before the brief was delivered
and its extent known to both parties when fixing the brief fees. Nor were they allowed in the Court of Appeal
for similar reasons. But when oral evidence began to be admissible in Chancery the reason for allowing
refreshers at common law applied in Chancery also, and a practice gradually arose of allowing additional
fees to counsel in appeal cases where from circumstances which could not reasonably be foreseen the
hearing occupied more than one day.
Can it be said that with the knowledge of the parties that no evidence would be taken, and that the case
was one on paper, that the fee on brief was fixed with

372
a view to include a hearing lasting four days? I have allowed a fee on brief which would cover at least
two periods of five hours each for the hearing and I incline to the view that although not strictly allowable as
a refresher fee an extra daily allowance should be paid to counsel for every five-hour period after the first ten
hours at the rate of 25 and 20 guineas respectively.
Taxation accordingly.

(1959) 1 WIR 373

Kellar v Narayan And Another

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
ARCHER AG C J, WYLIE AND LEWIS JJ
16, 17, 20 JULY 1959

Trespass False imprisonment Relationship created when employee is permitted to live on employers
premises Notice required to terminate such relationship.
K N was employed by C K as manager of his estate at Adventure. As part of the remuneration for his
services he was permitted to live, rent free, in a house on the estate. On 16 March 1954, C K terminated his
employment and called upon him to leave the house forthwith. The notice to quit was delivered in
Georgetown. K N returned to Adventure by the first means of ordinary transport and arrived there on 19

March 1954, to find C K already there. Police officers arrived shortly afterwards and an altercation ensued.
K N contended that he was a tenant and as such was entitled to a reasonable notice to quit. C K then
instructed the police officers to arrest K N on a charge of trespass. K N was arrested and so charged.
On 24 March C K threw K N s household and personal articles out of the house.
On 27 July 1954, C K withdrew the charge against K N
K N brought an action against C K in which he claimed damages for trespass to land and goods and for
false imprisonment.
Held: that K N was a licensee and as such was entitled to reasonable notice within which to remove himself
and his things from the premises. There was no pretence that he was allowed a reasonable time and he
could not, therefore, have become a trespasser on his refusal to leave the premises forthwith.
Appeal dismissed.
Cases referred to
Torbett v Faulkner [1952] 2 TLR 659, 96 Sol Jo 747, CA, 3rd Digest Supp
Ramsbottom v Snelson [1948] 1 All ER 201, [1948] 1 KB 473, [1948] LJR 946, 112 JP 160, 64 TLR 55, 92
Sol Jo 56, 46 LGR 139, DC, 31 Digest (Repl) 615, 7311
Canadian pacific Ry Co v R [1931] AC 414, 100 LJPC 129, 145 LT 129, PC, 30 Digest (Repl) 537, 1719
Minister of Health v Bellotti [1944] 1 KB 298, [1944] 1 All ER 238, 113 LJKB 436, 170 LT 146, 60 TLR 228,
CA, 30 Digest (Repl) 540, 1747
Doe d Nicholl v McKaeg (1830), 10 B & C 721, 5 Man & Ry KB 620, 8 LJOSKB 311, 109 ER 618, 31 Digest
(Repl) 42, 2003

373
Hunt v Colson (1833), 3 Moo & S 790, 30 Digest (Repl) 549, 1822
Lake v Campbell (1862), 5 LT 582
National Steam Car Co, Ltd v Barham (1919), 122 LT 315, NP, 31 Digest (Repl) 658, 7602
Ecclesiastical Comrs v Hilder (1920), 36 TLR 771; 84 JPJo 309, NP, 31 Digest (Repl) 658, 7603
Hemmings v Stoke Poges Golf Club [1920] 1 KB 720, 89 LJKB 744, 122 LT 479, 36 TLR 77, 64 Sol Jo 131,
CA, 31 Digest (Repl) 614, 7297
Cornish v Stubbs (1870), LR 5 CP 334, 39 LJCP 202, 22 LT 21, 18 WR 547, 31 Digest (Repl) 481, 6067
Appeal
Appeal by C K from the judgment of the Supreme Court of British Guiana (Trial DivisionBollers J) dated 7
March 1958, awarding damages to K N The facts appear in the judgment of Archer Ag CJ.
Cummings (instructed by H B Fraser) for the appellant
Stafford QC (instructed by Sase Narain) for the respondent
ARCHER Ag CJ. This is an appeal from a judgment of the Supreme Court in an action for false
imprisonment, malicious prosecution and trespass to land and goods. The male respondent was employed
by the appellant as the manager of his estate and together with the female respondent, whom the appellant
employed to manage a shop on the estate, occupied a house on the estate. On 16 March 1954, the
appellant terminated the respondents employment and called upon them to leave the house forthwith and to
remove their things therefrom by the following day. The written notice to quit did not give the respondents
dents any time in which to remove their belongings and was delivered to them at Georgetown on 16 or 17
March 1954. The respondents returned to the estate on 19 March 1954, which was the earliest date on
which they could have done so. The appellant also returned to the estate on the same day and when the
male respondent reached his home he found the appellant in his yard. Police officers arrived shortly
afterwards and an altercation ensued.
The male respondent contended that he was a tenant of the appellant and as such was entitled to
reasonable notice to quit. He refused to leave the house. He also refused to allow the appellant who had
been occupying a room in the house to enter the house but later relented.
The respondents alleged at the trial that at that point the appellant instructed the police to arrest them.
The appellant denied this but the judge found that he did give those instructions. Whatever the truth of the
matterand whether or not the evidence justified the judges finding of facts is one of the points in issue on
this appeal the narrative continues with the attendance of the parties at the police station where the
appellant made a charge of wilful trespass against the respondents and signed a complaint. The

respondents were released on bail and on 22 March 1954, they appeared before a magistrate. The case
against them was adjourned and on 27 July 1954, when they again appeared before the magistrate the
appellant withdrew the charges against them. It was further alleged that on 19 March 1954, after the
respondents had been released on bail and had returned to the house a search warrant was executed at the
house and books and documents belonging to the appellant removed therefrom, after which the male
respondent was made to go outside with the female respondent and her children and told by a
Superintendent of Police that he would be locked up if he made himself a nuisance or went back to the
house. It was further alleged that on 24 March 1954, the appellant threw the respondents household and
personal articles out of the house and continued to trespass upon the premises.
The judge found that the male respondent was not a tenant of the of the appellant. He held, however,
that he was a licensee with a right to reasonable notice to quit and that no such notice had been given. He
decided in favour of the

374
respondents on the issue of false imprisonment and awarded damages but he considered that they had
not proved absence of reasonable and probable cause for the prosecution on the charge of wilful trespass
and resolved that issue in favour of the appellant. He did not give damages for trespass to the premises on
the ground that the trespass was technical. He found trespass to goods proved and awarded damages.
Both counsel have accepted the judges finding that the male respondent was not a tenant. Counsel for the
appellant has, however, submitted that the male respondent was required, and not merely permitted, to
occupy the premises and that his occupancy was therefore a service occupancy; that he was not entitled on
his peremptory dismissal to any time within which to remove his goods; that he had no right to re-enter the
house on his return from Georgetown except to remove his goods; that he was a trespasser from the
moment he entered because his purpose was not to remove his goods, or, at any rate, from the time he
defied the appellant and refused him entry into the house, even though he later allowed him to enter and
remove his things; that any time given by the appellant for the removal of the respondents goods would
have been an indulgence, that such an indulgence would have been forfeited by a refusal to give up the
premises, and that, moreover, the respondents had not asked for any such indulgence. Counsel submitted
further that the male respondent was guilty of criminal trespass under s 33 of the Summary Jurisdiction
(Offences) Ordinance, Cap 14 [BG], the moment he was told by the appellant to leave the premises and
refused to do so.
Counsel for the respondents accepted the finding by the trial judge that the respondents were licensees.
He said that as licensees the respondents were entitled to a reasonable time within which to remove
themselves and their goods from the premises; that time had not begun to run against them up to the time of
their arrest because until then the parties had been engaged in argument which provoked heated words
from the male respondent but not defiance nor an intention to exclude the appellant indefinitely from the
premises.
Counsel for the appellant confined his argument almost exclusively to the status of the male
respondent. The occupation of the premises by the female respondent was clearly not a service occupancy
and counsel found himself having to argue that the state of mind of the male respondent must be imputed to
the female respondent. He also omitted, no doubt through an oversight, to complain against the finding that
the appellant had committed a trespass to the premises. The male respondent was the manager of the
estate before the appellant acquired it and he occupied the managers house. He said that the arrangement
between the appellant and himself was that he was to remain in the house and that $20 per month was to be
deducted from his salary (which he said was agreed to be $80 per month) for rent. The judge did not accept
his evidence that $20 per month was to be deducted from his salary for rent of the house but has found that
his salary was $60 per month and that occupation of the house was part of his remuneration. The appellant
said that he permitted the male respondent to occupy the house but reserved a room in it for himself. The
judge did not believe that there had been any such reservation.
Neither of the parties said that the appellant had required the male respondent to live in the house but
the judge inferred from all the circumstances that the male respondent had been required to occupy the
whole of the premises in the performance of his contract of service as part of his remuneration and that he
had been required to do so for the better performance of his duties of service. The precise meaning of the
passage in his judgment in which he expresses this view is obscure but if he intended to find that the
appellant required the male respondent to occupy the premises, his finding would have been without any
evidence to support it. In that part of his judgment he was contrasting the position of a tenant with that of a
licensee and his conclusion that the male respondent was a licensee and not a tenant recognises that there
was something

375
more in the arrangement than the mere accommodation of the male respondent. He referred to the
duties which the male respondent had to perform and said that it was essential for the male respondent to
be on the spot. There was evidence, however, that the male respondent had an interest in a hotel near the
managers house and however desirable it may have been that he should occupy the managers house

there was no necessity that he should do so and I draw the inference of convenience and not that of
necessity.
In Torbett v Faulkner ([1952] 2 TLR 659, 96 Sol Jo 747, CA, 3rd Digest Supp), Denning LJ, said ([1952]
2 TLR at p 660):
If a servant is given a personal privilege to stay in a house for the greater convenience of his work,
and it is treated as part and parcel of his remuneration, then he is a licensee, even though the value of
the house is quantified in money, but if he is given an interest in the land, separate and distinct from
his contract of service, at a sum properly to be regarded as a rent, then he is a tenant, and none the
less a tenant because he is also a servant. The distinction depends on the truth of the relationship and
not on the label which the parties choose to put upon it.
Taking the view, as I do, that the male respondent was not required either by the nature of his duties or
by the express terms of his contract to reside in the managers house, I do not find it necessary to consider
to any of the numerous authorities upon which counsel for the appellant relied to support his argument that
the male respondent held a service occupancy which gave the appellant the right to turn him out of doors at
a moments notice. The male respondent was a licensee and as such was entitled to a reasonable time
within which to remove himself and his things from the premises. There can be no pretence that he was
allowed a reasonable time and he could not therefore have become a trespasser on his refusal to leave the
premises forthwith nor could the female respondent, unless some provision of a local law so enacts.
Counsel for the appellant argued that the appellant, as owner of the premises, having lawfully required
the male respondent, who had lawfully entered the premises, to leave, and the male respondent having
refused to do so, the male respondent became a wilful trespasser within the meaning of s 33 (e) of the
Summary Jurisdiction (Offences) Ordinance, Cap 14 [BG] He said that a criminal trespass under the section
would have been committed even if the male respondent had been a tenant. This argument is quite
untenable and the short answer is that the appellant could not lawfully require the male respondent to leave
forthwith because as a licensee he had the right to a reasonable time within which to do so. The same
considerations apply in the case of the female respondent.
It was also submitted that the finding that the appellant authorised the arrest of the appellants was
against the weight of evidence but that finding was abundantly justified. The judge found that the appellant
trespassed on the premises occupied by the respondents. No argument has been addressed to us on this
aspect of the case and as no damages were awarded under this head there is no need to consider the
matter further. I must not however be taken to have agreed with this finding. Counsel for the appellant also
urged that the damages awarded were excessive. The action of the appellant was high-handed and the
respondents must have suffered humiliation. It has not been shown that the trial judge proceeded upon a
wrong principle and I can find no ground for disturbing his award. The assessment of damages in favour of
the female respondent includes the sum of $50 as special damages for trespass to her goods. The judge
has not indicated how he has arrived at this figure and it may be that he should have made his award under
the head of general damages. His award has not, however, been attacked and I do not think that the point is
of any importance in the circumstances. In my judgment, the appeal fails on all grounds and should be
dismissed with costs.

376
WYLIE J. The ground of appeal that was pressed on behalf of the appellant was substantially that set out in
paragraph 2 of the grounds of appeal, viz, that in the circumstances of this case, at the time of the arrest, the
respondents were trespassers and the arrest was, therefore, justified in accordance with the statute law of
British Guiana concerning wilful trespass and arrest for that offence.
Accepting the findings of fact by the trial judge, as I do, this ground becomes purely a question of law,
and, as I understand the appellants original argument, it involved the following propositions:
1. Apart from tenants and licensees under licences conferring a right to occupy on the licensee,
there are service occupants who in law in law are neither tenants nor licensees.
2. A service occupant is a trespasser immediately his contract of service is terminated, and the
servants only remedy is an action for wrongful dismissal, if the contract was improperly terminated by
the master.
3. The contracts of service in this case were, as found by the trial judge, terminated by the
appellant for just cause prior to the time of arrest and therefore the respondents were trespassers on
the appellants property at the time they were arrested.
In support of the first proposition, the appellant referred to a number of cases in which the real question
in issue was whether a tenancy existed, so that the occupier was entitled to the rights that accrued to
tenants under certain laws such as those relating to local elections or rent restriction. Stress was laid on the

fact that, in those judgments, when discussing the position of an employee who was not a tenant, the term
service occupant, or some such term, is used in contradistinction to that of tenant, but the term licensee is
not used at all. I find it unnecessary to refer to those cases in detail, because what was under consideration
in those cases were rights of tenants under specific laws conferring rights on tenants and not the rights of
licensees. It is not surprising, therefore, that, in the course of delivering the various judgments, there should
have been no necessity to refer explicitly to the fact that the relationship, if not that of landlord and tenant,
was that of licensor and licensee. All that was necessary to arrive at a decision in those cases, was to
consider and decide whether the relationship of landlord and tenant existed. There was no need to go on to
consider what the precise legal relationship was, if it was not that of landlord and tenant.
On the other hand, in Ramsbottom v Snelson ([1948] 1 All ER 201, [1948] 1 KB 473, [1948] LJR 946,
112 JP 160, 64 TLR 55, 92 Sol Jo 56, 46 LGR 139, DC, 31 Digest (Repl) 615, 7311) ([1948] 1 KB at p 476),
Lord Goddard CJ, commences his judgment with the following sentence:
The sole question in this case is whether there was a tenancy in the present appellant or whether
his holding of the cottage in question was what is commonly called a service occupancy, so that there
was no real tenancy but a licence to occupy.
In Torbett v Faulkner ([1952] 2 TLR 659, 96 Sol Jo 747, CA, 3rd Digest Supp) ([1952] 2 TLR at p 660),
Denning LJ, says unequivocally that a service occupation, as opposed to a service tenancy, is only one form
of licence, albeit a particular form of licence.
In my judgment, there can be no doubt that, after rejecting the evidence of a tenancy, the trial judge was
correct in deciding that the legal relationship in this case was that of licensor and licensee.
This disposes of the principal argument on behalf of the appellant. It was, however, further submitted
that, if there was a licence, it was properly revoked by the licensor and, at the time of the alleged arrest, the
respondents had no right under the licence to be on the premises and were therefore properly arrested as
trespassers.
This involves a consideration of the rights of a licensee upon termination of his licence. It is clear that
these rights depend upon the circumstances of each

377
case, and may vary with each case. Canadian Pacific Ry Co v R ([1931] AC 414, 100 LJPC 129, 145
LT 129, PC, 30 Digest (Repl) 537, 1719) and Minister of Health v Bellotti ([1944] 1 KB 298, [1944] 1 All ER
238, 113 LJKB 436, 170 LT 146, 60 TLR 228, CA, 30 Digest (Repl) 540, 1747) are clear authorities for this
proposition and the first is binding on this court. Moreover, these two cases illustrate how varied in extent
these right may be in so far as concerns a right to remain upon the property after the actual revocation of a
licence. Where, however, a licence has conferred on a licensee a right to occupy the property to which the
licence relates, including a right to bring his goods thereon, it is clear that one of the rights to which a
licensee is entitled after revocation is a right to remain in occupation for a period of time that is reasonable in
all the circumstances for the purpose of removing both himself and these goods. Thus, in Bellottis
case([1944] 1 KB 298, [1944] 1 All ER 238, 113 LJKB 436, 170 LT 146, 60 TLR 228, CA, 30 Digest (Repl)
540, 1747) ([1944] 1 All ER at p 243), Lord Greene, M R, has this to say:
The true view, in my judgment, quite apart from the question of notice of intention to revoke the
licence (as to which I shall say a word later), is that, where a licence is revoked the licensee has, in
spite of the revocation, whatever in the circumstances is a reasonable time to enable him to remove
himself and his possessions from the scene of the licence.
And again, per Goddard LJ (ibid, at p 245):
If a licensor determines the licence, he is bound to give a reasonable time within which the
determination is to take effect, so that the licensee can collect himself, his property or whatever it may
be, from the premises in respect of which the licence has been withdrawn. He is bound to give a
reasonable time and, if he does not and takes proceedings before the reasonable time has elapsed, he
loses his action.
It is to be noted that, in that case, the licensor took proceedings to obtain orders for possession and
Goddard LJ, was obviously referring to such proceedings in this passage.
I can see no reason for holding that, in cases of service occupancies, whatever the circumstances of
the particular case may be, a licensee is deprived of this right in respect of what is a reasonable time for the
removal of himself (including his family) and their goods. It may be that, in some cases, the circumstances
to be taken into account may include circumstances which would make it unreasonable to allow the licensee
to remain in possession for any considerable time, eg, if it was essential for the continuance of his masters
business or the protection of the masters property to have another servant in occupation immediately.

But, whether or not a court would so decide in appropriate circumstances, that is not the case here.
The master was on the scene and there is no evidence that continued occupation of the house by the first
respondent for sufficient time to remove the property of the respondents was likely materially to prejudice the
appellant to such an extent as would justify depriving the first respondent of a reasonable opportunity to
remove this property.
The court was referred to various cases which it was submitted were authorities for the proposition that
the employee in the case of a service occupancy which was a licence, did not have the right, after
termination of his contract of employment, to remain on the premises at all, and certainly not for sufficient
time to remove his goods.
These cases were Doe d Nicholl v McKaeg ((1830), 10 B & C 721, 5 Man & Ry KB 620, 8 LJOSKB 311,
109 ER 618, 31 Digest (Repl) 42, 2003), Hunt v Colson ((1833), 3 Moo & S 790, 30 Digest (Repl) 549,
1822), Lake v Campbell ((1862), 5 LT 582), National Steam Car Co, Ltd v Barham ((1919), 122 LT 315, NP,
31 Digest (Repl) 658, 7602), Ecclesiastical Comrs v Hilder ((1920), 36 TLR 771; 84 JPJo 309, NP, 31 Digest
(Repl) 658, 7603), and Hemmings v Stoke Poges Golf Club ([1920] 1 KB 720, 89 LJKB 744, 122 LT 479, 36
TLR 77, 64 Sol Jo 131, CA, 31 Digest (Repl) 614, 7297).
In Doe d Nicholl v McKaeg ((1830), 10 B & C 721, 5 Man & Ry KB 620, 8 LJOSKB 311, 109 ER 618, 31
Digest (Repl) 42, 2003) the court considered that the employee was a tenant at will, that his tenancy could
therefore be determined by a mere demand for possession without any other notice and that therefore
proceedings for ejectment could be brought immediately after such demand. The rights of a licensee were
not considered at all in that case. Nevertheless, Lord Tenterden

378
C J, was constrained to observe that even a person who had held a tenancy at will which had been
determined, might not be a trespasser if, after such determination, he had entered on the premises for the
sole purpose of removing his goods, continuing there no longer than was necessary and not excluding the
landlord. This case cannot be considered an authority on the rights of licensees.
In all the other cases, the employee had a substantial period of time after the determination of the
licence (or tenancy, as it appears to have been in some cases) when he might have removed himself and
his goods. The shortest period appears to be nine days (in Lake v Campbell ((1862), 5 LT 582) and in other
cases there were much longer periods. It is not surprising, therefore, that a claim to this right does not
appear to have been raised, so far as I can find from the reports, and that the judgments do not consider this
right. If it had been raised, the various periods that elapsed might, in all the circumstances, have been
considered sufficient, and it is clear that these decisions cannot be taken as authorities for the proposition
that this right does not exist at all in the case of a service occupancy which is a licence.
In the circumstances of this case, the second respondent and her children were to all intents and
purposes part of the family of the first respondent, who would therefore have the same right in respect of the
removal of their goods as in respect of his own.
In the present case, there is in my view no need to consider whether the respondents might have any of
the other rights that licensees might have, eg, as in Bellotti s case ([1944] 1 KB 298, [1944] 1 All ER 238,
113 LJKB 436, 170 LT 146, 60 TLR 228, CA, 30 Digest (Repl) 540, 1747) where it was held that the licensee
should have sufficient time to find alternative accommodation. For the brief period that elapsed between the
return of the parties from Georgetown to the premises and the actual time of arrest, was clearly insufficient
to enable the respondents to remove their goods.
It is to be observed that the arrest took place within a short time of arrival at Adventure on 19 March
1954. Before this court, it was conceded by counsel for the appellant that the return journey from
Georgetown to Adventure was made by the first available ordinary transport after receipt of the notice of
dismissal. It could not be reasonably suggested (and was not suggested) that the respondents should
charter an aeroplane or a ship to return to Adventure more quickly, merely in order to shorten the time taken
to remove themselves, the children and their goods from the house.
Moreover, it is clear that the arrest took place within an hour or two of arrival at Adventure. The exact
time is not important because, in view of the various incidents in which both appellant and respondents were
engaged, it is obvious that there could not, in any view, have been a reasonable opportunity for the first
respondent to remove his belongings from a house in which he had lived for some three years or for the
second respondent to remove her children and her furniture and belongings from that house.
In the charge as set out in the complaint in exhibit C the appellant alleged that the respondents,
having lawfully entered the appellants house, remained thereon after having been lawfully required by the
owner to depart therefrom. And it was upon this charge the respondents were arrested. It is clear from
Bellottis case ([1944] 1 KB 298, [1944] 1 All ER 238, 113 LJKB 436, 170 LT 146, 60 TLR 228, CA, 30 Digest
(Repl) 540, 1747) that, at the time of arrest, the owner could not lawfully require the respondents to leave
the house, because he was not entitled to possession from them at that time. He therefore had no legal
justification for instructing the police to arrest the respondents when he did.
Counsel for the appellant submitted that the first respondent could not claim any right a licensee might
have to be allowed a reasonable time to remove his goods because, as the trial judge found, he claimed the

right to remain in the house as a tenant who had not been given proper notice. I do not see how the making
of a claim to this right, which the trial judge found he did not possess, could affect the application to the
circumstances of this case as they existed at

379
the time of the arrest, of the principle of law that a licensee must be allowed what is in the
circumstances a reasonable period to remove his goods.
On the other issues raised in this appeal, I agree with the judgment of the Acting Chief Justice and have
nothing to add.
I agree also that the appeal should be dismissed with costs.
LEWIS J. I agree that the appeal should be dismissed, and wish only to add a few observations.
With regard to the question whether the respondent Narayan was a licensee or not I think the cases of
Ramsbottom v Snelson ([1948] 1 All ER 201, [1948] 1 KB 473, [1948] LJR 946, 112 JP 160, 64 TLR 55, 92
Sol Jo 56, 46 LGR 139, DC, 31 Digest (Repl) 615, 7311) and Torbett v Faulkner ([1952] 2 TLR 659, 96 Sol
Jo 747, CA, 3rd Digest Supp) show clearly that he was a licensee. That being so, what was his position?
The result of the cases is stated by Lord Goddard L J, in Minister of Health v Bellotti ([1944] 1 KB 298,
[1944] 1 All ER 238, 113 LJKB 436, 170 LT 146, 60 TLR 228, CA, 30 Digest (Repl) 540, 1747), where he
says ([1944] 1 All ER at p 245):
On the other point, it seems to me the position is this : If a licensor determines the licence, he is
bound to give a reasonable time within which the determination is to take effect, so that the licensee
can collect himself, his property or whatever it may be, from the premises in respect of which the
licence has been withdrawn. He is bound to give a reasonable time, and if he does not and takes
proceedings before the reasonable time has elapsed, he loses his action.
Lord Goddard was in effect re-stating what had been said by WILLES, J, in Cornish v Stubbs ((1870),
LR 5 CP 334, 39 LJCP 202, 22 LT 21, 18 WR 547, 31 Digest (Repl) 481, 6067) ((1870), LR 5 CP at p 339):
Under a parol licence the licensee has a right to a reasonable time to go off the land after it has
been withdrawn before he can be forcibly thrust off it; and he could bring an action if he were thrust off
before such a reasonable time had elapsed.
I see no reason why this rule, which appears to me to be a rule of justice and common sense, should
not be as applicable to a servant who occupies his masters house by leave and licence of his master, as it
is to any other type of licensee.
What is a reasonable time is a matter for determination according to the circumstances of each case:
Canadian Pacific Ry Co v R ([1931] AC 414, 100 LJPC 129, 145 LT 129, PC, 30 Digest (Repl) 537, 1719);
Minister of Health v Bellotti ([1944] 1 KB 298, [1944] 1 All ER 238, 113 LJKB 436, 170 LT 146, 60 TLR 228,
CA, 30 Digest (Repl) 540, 1747). In the instant case, the respondents had resided in the house with their
children for some years, and had their furniture and personal belongings in it. The appellant gave them no
time at all in which to leave the premises or to collect their belongings or to make other arrangements for
their accommodation, but required them to leave the house immediately, and on their protesting that the time
was too short and that they were entitled to notice, he had them arrested and taken to the Police Station. In
these circumstances I am clearly of opinion that the respondents wee not trespassers and their arrest was
wrongful.
Having regard to the view that I have formed, it is not necessary for me to consider the question raised
on s 33 (e) of the Summary Jurisdiction (offences) Ordinance, Cap 14 [BG], and I express no opinion on it.
Appeal dismissed.

380
(1959) 1 WIR 381

Burnham v Rohoman
FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
ARCHER AG C J, WYLIE AND LEWIS JJ
20 JULY 1959

Procedure Leave to appeal Section 27 (1) of the Rent Restriction Ordinance, Cap 186 [BG].

On an application for leave to appeal in a matter under the Rent Restriction Ordinance, Cap 186 [BG],
Held: that in such matters (not being proceedings before the Rent Assessor as such) an appeal to the Full
Court of British Guiana is final.
Application dismissed.
No cases referred to.
McKay (instructed by C M John) for the appellant
ramprashad (instructed by D Dyal) for the respondent
ARCHER Ag CJ. On 9 March 1959, an application was made to this court for special leave to appeal
against the decision of the Full Court of the Supreme Court of British Guiana, given on 20 February 1959, in
the suit of Abidan Rohoman v Jessie Burnham. On reading the papers placed before it on that occasion,
this court directed that the application should be made to the Full Court itself, and adjourned the application
before it sine die. On 10 April 1959, the Full Court dismissed the application made to it with costs and the
applicant now renews the application made to this court on 9 March 1959.
The record before the court does not indicate that the Rent Restriction Ordinance, Cap 186 [BG], is
relevant to the application but counsel on both sides agree that both the decision of the Full Court and the
order of the magistrate which it affirmed are governed by that Ordinance. Section 26 (4) (b) (1) of that
Ordinance provides that where a rent assessor has been appointed under s 7 (1), a summons for the
recovery of any premises to which the Ordinance applies shall be returnable, and shall be made returnable
before the rent assessor in his capacity as a magistrate and not before the magistrate of the judicial district
in which the premises are situate. Section 27 (1) enacts that an appeal shall lie to the Full Court of the
Supreme Court from the decision of a magistrate on any claim or proceedings (not being proceedings before
the Rent Assessor as such) in respect of any premises to which this Ordinance applies, and the judgment or
order of the Full Court shall be final. The decision of the Full Court which the applicant seeks to challenge
was an adjudication under the Ordinance.
Section 9 (2) of the Federal Supreme Court (Appeals) Ordinance, 1958 (No 19 of 1958 of the Laws Of
British Guiana) enacts that, subject as otherwise provided in the section, appeals shall lie to this court from
certain orders of the Full Court or of a judge of the Supreme Court. Section 9 (6) provides that no appeal
shall lie under the section where it is provided by any Ordinance that the decision of such court or judge
shall be final. The Rent Restriction Ordinance is such an Ordinance and, accordingly, this court has no
jurisdiction to entertain this application and it must be dismissed with costs.
WYLIE J. I concur.
LEWIS J. I also concur.
Application dismissed.

381
(1959) 1 WIR 382

Hopkinson v Lall
FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
ARCHER AG C J, WYLIE AND LEWIS JJ
21 JULY 1959

Tort Negligence Agency Whether the owner of a motor car is liable for the negligence of a person to
whom he lent it.
GH was injured when a motor car in which he was a passenger and which was being driven by MR collided
with a concrete post. The motor car belonged to JL who on several previous occasions lent it to MR On the
day in question MR borrowed the car and took GH for a drive out of Georgetown. They returned to
Georgetown and had dinner and afterwards while driving in Georgetown met with the accident.

Held: there was no evidence that MR had ceased to be on his own business or pleasure at the time of the
accident and consequently no evidence that he was JLs agent.
Appeal dismissed.
Cases referred to
Hillman v Walls (1938), 5 LJCCR 167
Ormrod v Crosville Motor Services, Ltd [1953] 2 All ER 753, 97 Sol Jo 570, CA, 3rd Digest Supp
Barnard v Sully (1931), 47 TLR 557, DC, 36 Digest (Repl) 104, 524
Hewitt v Bonvin [1940] 1 KB 188, 109 LJKB 223, 161 LT 360, 56 TLR 43, 83 Sol Jo 869, CA
Appeal
Appeal from the judgment of the Supreme Court of British Guiana (Trial Division-Luckhoo J) dated 21
november 1958, dismissing the action. The facts appear in the judgment of Archer Ag CJ.
Burnham (instructed by Corals Domes) for the appellant
Fraser (instructed by H B Fraser) for the respondent
ARCHER Ag CJ. The appellant was injured on the night of 14 September 1956, when a motor car in which
he was a passenger and which was being driven on Regent Street, Lacytown, Georgetown, by Maurice
Rodrigues, a friend of his, collided with a concrete post in the centre of a traffic island at the corner of
Wellington and Regent Streets. He was unsuccessful in an action for damages for negligence which he
brought against the respondent, the owner of the motor car, and in which he alleged that Rodrigues was, at
the time of the accident, the respondents agent, and he has now appealed to this court.
The respondent, as he had done on several previous occasions, lent his motor car on 14 September
1956, to Rodrigues who came into Georgetown from the country for a visit. Rodrigues and the appellant
went for a drive up the East Coast Road and then returned to Georgetown where they had dinner at the
Cactus Club, Tower Hotel, Main Street. They remained at the Cactus Club for about an hour and left about
9.30 pm. They proceeded south along Main Street, south along High Street, and then east along Regent
Street, and it was while they were driving along Regent Street that the accident took place.
The trial judge found that the collision was caused by the negligent driving of Rodrigues. The appellant
was unable to say what was the cause of the collision but the respondent called no evidence and I think that
the judge was justified in finding that the doctrine of res ipsa loquitur applied to the circumstances of the
case.
The real question for determination is whether or not Rodrigues was the respondents agent at the time
of the collision. There was evidence that he had often driven the respondents motor car and carried the
appellant as a passenger in it and that the respondent knew that he had and had never

382
expressed disapproval. There was also an admission by the respondent that he had expected
Rodrigues to come back to Queens College for him. The judge excluded evidence of an admission that he
was on his way to Queens College which Rodrigues is alleged to have made to the appellant immediately
before the accident.
The trial judge took the view that there was no evidence to show that at the time of the collision the car
was being driven for any purpose other than Rodrigues. He was further of the opinion that even if there had
been admissible evidence that at the time of the collision the car was on its way back to Queens College, no
reasonable inference could be drawn therefrom that the car was being driven for any purpose of the
defendant. He said:
In such circumstances the purpose for which the car was being driven on the road would be the
return of the car to the defendant after its use by Rodrigues for Rodrigues own purpose (see Hillman v
Walls ((1938), 5 LJCCR 167), referred to in Bingmams Motor Claims Cases (3rd Edn) at pp 95-96).
Up to the time of its return to the defendant at Queens College the car would have been in use for no
purpose of the defendant. The defendant had lent the car to Rodrigues to be used for purposes in
which the defendant had no interest or concern and applying the test laid down by Denning LJ, in
Ormrods v Crosville Motor Services, Ltd case ([1953] 2 All ER 753, 97 Sol Jo 570, CA, 3rd Digest
Supp) the defendant is not liable for the injuries occasioned by Rodrigues negligent driving.
Counsel for the appellant submitted that the respondents two conversations with the appellant in the
course of which he said that Rodrigues never turned up for him at Queens College as he told him to do,
and that he had no objection to Rodrigues taking anyone at all in the car so long as he returned the car in a
good condition and came back for him at Queens College, amounted to an admission of Rodrigues

agency; that, apart from that consideration, there was a presumption that the car was being driven by the
respondents agent when it set out from Queens College as there was no evidence as to the purpose for
which Rodrigues took the car initially from Queens College and it was for the respondent to rebut that
presumption which he had failed to do, that Rodrigues continued to be the respondents agent even though
he was for a part of the night on his own business or pleasure, and that his conversation with the appellant
immediately before the accident was admissible in evidence on the ground that it was an admission with
regard to his agency which was equivalent to an admission by the respondent himself.
Counsel for the respondent submitted that any presumption of agency was rebutted by the evidence of
the appellant himself; that the element which would have made the respondent liable was his part or share
in the use of the vehicle viewed as a whole; that from the time Rodrigues took the car from Queens College
to the time of the accident should be considered as one journey, and that the respondents interest would not
have arisen until the car returned to Queens College. Several cases have been referred to by both counsel
but I derive little assistance from them and regard most of them rather as decisions on particular facts, and,
in some instances, not easily reconcilable, than as laying down propositions of law. I do not therefore
propose to discuss them but as great reliance has been placed by both counsel on Ormrod v Crosville Motor
Services, Ltd ([1953] 2 All ER 753, 97 Sol Jo 570, CA, 3rd Digest Supp) and each counsel has submitted
that that case is in his favour, I shall devote a word or two to it. I need not recite the facts and I find no fault
with the decision in that case, but I do not consider that it provides a criterion such as has been suggested in
argument, namely, that in every case whatever travelling is done by the driver of the car must be considered
as a single journey. In Ormrods v Crosville Motor Services, Ltd case ([1953] 2 All ER 753, 97 Sol Jo 570,
CA, 3rd Digest Supp), both Singleton L J, and Denning L J, thought that the trip from Birkenhead (which was
Ormrods starting-point) to Monte Carlo (where he was to join the owner and from which place they were

383
to proceed together to some other place) should be considered as a whole, including the prearranged
excursion to Normandy, and in the circumstances of that case there is nothing unreasonable in that view
though I think that the view could equally well have been taken that Ormrod was on his own business when
the accident occurred and would not have become the owners agent until he had completed the authorised
detour and set out for Monte Carlo. I see no principle of law which compelled the conclusion reached in that
case that the authorised detour was a part of a whole journey and I agree with the submission of counsel for
the respondent that the crux of the matter in this case lies in the determination of the question whether
Rodrigues was on his own business at the time of the collision or on the respondents business or on their
joint business.
I do not find it necessary to determine on whose business Rodrigues was when he took the car from
Queens College, but it is clear to me that he was on his own business from the time he drove the appellant
from the appellants home to the time they arrived at the Cactus Club for dinner. He was not during this
period the respondents agent and I do not accept the contention, even if the assumption be made that he
was the respondents agent when he left Queens College, that he continued to be when the appellant and
he were bent on their own pleasure. There is, in my view, no evidence that he had ceased to be on his own
business or pleasure at the time of the accident and, consequently, no evidence that he was then the
respondents agent. It follows that his conversation with the appellant at the time of the accident is
inadmissible and it cannot be established that he was then on his way to Queens College. The appellant
has, in my judgment, failed to prove that he was injured on a journey for which the respondent is
responsible. My conclusion would, however, have been otherwise if the evidence which the judge excluded
had been admissible. The judge accepted the appellants evidence as to what the respondent had told him
concerning the arrangement for the return of the car to Queens College. Rodrigues was not only to bring
the car back but he was to come back for the respondent. Although so contended for by counsel for the
respondent, this is not a mere matter of dispute as to the particular preposition used by the respondent; to
return the car and to come back for the respondent do not convey to my mind the same purpose and I
entertain no doubt at all that the meaning to be attached to what the respondent said is not that Rodrigues
was merely to hand the car back at the end of a bailment but that they had a joint purpose in contemplation
when Rodrigues took the car. The arrangement between them was similar to the arrangement between
Ormrod and the owner in Ormrods v Crosville Motor Services, Ltd case ([1953] 2 All ER 753, 97 Sol Jo 570,
CA, 3rd Digest Supp) for meeting at Monte Carlo and if there had been evidence that Rodrigues at the time
of the accident was on his way to fulfil the engagement upon which he and the respondent were to enter
when he had completed his own business I would have had no difficulty in fixing the respondent with liability
on the ground that Rodrigues was at the time on a journey in which the respondent had an interest. I think
that the trial judges conclusion was right, though I am not in entire agreement with his reasoning, and that
the appeal should therefore be dismissed with costs.
WYLIE J. I agree that the appeal must be dismissed with costs and would only add that, if it were
necessary to decide, I would find myself unable to express any final opinion as to the position if the evidence
which in the circumstances the trial judge properly excluded, had been admitted, and the plaintiff cross-

examined in respect of it. My tentative view is that, if the evidence amounted only to what is referred to by
the trial judge at p 48 of the record, it may only have established that, at the time of the accident, Rodrigues
was driving the car back for the purpose of returning it to its owner after using it himself. A proper view might
then still be that the driver was on his own business only, and not also on the owners business. The fact
that the evidence

384
suggested that the owner was going to use the car again after Rodrigues had returned for him would
not in my view necessarily establish that the return journey was on their joint business. For, if all the
circumstances were known, the proper view might be that there were two separate journeys.
LEWIS J. The facts of the case are set out in the judgment which has just been delivered by the Acting
Chief Justice and it is unnecessary for me to repeat them. The point for decision is whether, at the time of
the collision, the appellants friend, Rodrigues, was driving the respondents car either wholly or partly for
purposes in which the respondent had an interest or concern so as to make him (the respondent) vicariously
liable for his negligence. I am clearly of opinion that he was not.
It was urged on behalf of the appellant that on the authority of Barnard v Sully ((1931), 47 TLR 557, DC,
36 Digest (Repl) 104, 524), in the absence of any other evidence as to the purpose for which Rodrigues took
the car from Queens College, he must be presumed to have been driving it as the respondents agent, and
that as in this case the respondent had not called or given evidence in rebuttal of that presumption the
agency must be deemed to have continued up to the moment of the collision. In my view, Barnards v Sully
case ((1931), 47 TLR 557, DC, 36 Digest (Repl) 104, 524) only applies where the court finds that a vehicle
was negligently driven and that the defendant was its owner, and is left without further information. That is
not the position in this case, for it was clearly proved, and admitted in argument, that the drive from the
appellants home along the East Coast and to the Cactus Club was undertaken solely for the pleasure of
Rodrigues and the appellant and no way on the business of the respondent.
But it is said, there is evidence that the respondent had told Rodrigues to turn up, or to come back,
for him at Queens College, and it may be inferred from this that Rodrigues was carrying out the instructions
of the respondent to bring the car back for the respondents use, so that at any rate the respondent would
have an interest in the return journey. It was submitted that in such circumstances the respondent would be
liable for Rodrigues negligence. In support of this proposition counsel for the appellant relied on the case of
Ormrod v Crosville Motor Services, Ltd ([1953] 2 All ER 753, 97 Sol Jo 570, CA, 3rd Digest Supp).
This submission could admittedly not be maintained without the assistance of evidence, excluded by the
trial judge, that Rodrigues had told the appellant, after leaving the Cactus Club, that he was on his way back
to Queens College for the respondent. In my opinion, in the absence of other evidence that Rodrigues was
the respondents agent, this evidence was rightly excluded.
The learned trial judge held that the suggested inference could not reasonably be drawn from the
admitted statements of the respondent, and I see no reason to differ from him. Even if this inference could
properly be drawn, however, and the excluded evidence were admissible, the appellants action, in my
opinion, must still have been unsuccessful. Rodrigues was under an obligation to return the car which he
had borrowed and in this case this obligation was to be fulfilled by returning it at Queens College. The fact
that it may have been intended that after the return of the car it was to be used for the joint purposes of
Rodrigues and the respondent does not, in my view, affect the purpose of the return journey, which remains
solely the fulfilment of Rodrigues obligation.
I regard the facts of this case as being materially different from those of Ormrods v Crosville Motor
Services, Ltd case ([1953] 2 All ER 753, 97 Sol Jo 570, CA, 3rd Digest Supp), where the main purpose for
which the river set out on his journey was to comply with the owners request that he should drive the car,
containing the owners suitcase, from Birkenhead to Monte Carlo. I do not read Ormrods v Crosville Motor
Services, Ltd case ([1953] 2 All ER 753, 97 Sol Jo 570, CA, 3rd Digest Supp case) as laying down a rule
that, wherever it is intended that on the completion of one journey a vehicle is to be used for the joint
purposes of the owner and the driver, the owner must be deemed to have such an interest in the first journey
as to make him liable for the drivers negligence. The

385
instant case appears rather to fall within the exception mentioned by Lord Denning, where he says
([1953] 2 All ER at p 755):
The owner only escapes liability when he lends it or hires it to a third person to be used for
purposes in which the owner has no interest or concern: see Hewitt v Bonbon ([1940] 1 KB 188, 109
LJKB 223, 161 LT 360, 56 TLR 43, 83 Sol Jo 869, CA).
I agree that the appeal should be dismissed with costs.
Appeal dismissed.

(1959) 1 WIR 386

Christian Catholic Church In British Guiana v Jeffery

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
ARCHER AG CJ, WYLIE AND LEWIS JJ
21, 22 JULY 1959

Evidenc Contained in affidavits Silent on matters which required elucidation Power of the court
Section 10 (2) of the Federal Supreme Court (Appeals) Ordinance, 1958, No 19 [BG].
In 1937, EJ founded a church in British Guiana under the name of Bartica Holiness Tabernacle. From
December 1941, he received financial assistance from the Christian Catholic Church at Zion in Illinois in the
United States of America. In 1945 he changed the name of his church to Christian Catholic Church. In
December 1950, EJ, as superintendent of the Christian Catholic Church, and his successors in that office
were created a body corporate by Ordinance, Cap 226 [BG]. On 27 August 1958, the overseer of the
American Church notified EJ by letter that he would cease to be superintendent of the church in British
Guiana from the receipt of that letter. EJ ignored the letter and an action was brought in which a claim was
made for a declaration that EJ had ceased to be superintendent of the church in British Guiana.
All the evidence was on affidavits.
Section 10 (2) of the Federal Supreme Court (Appeals) Ordinance, No 19 of 1958 [BG], provides that the
Federal Supreme Court may make any order on such terms as it thinks just to ensure the determination on
the merits of the real question in controversy between the parties.
Held: that to allow EJ to succeed on the ground that the other party has failed to discharge the onus of proof
would, in the circumstances, be to prevent and not to ensure the determination of the merits of the real
question in dispute.
Appeal allowed. New trial ordered.
Cases referred to
Lovell v Wallis (1883), 53 LJ Ch 494, 49 LT 593, 22 Digest (Repl) 515, 5725
City Tote, Ltd v Chin (unreported), No 5 of 1954, West Indian Court of Appeal
Appeal
Appeal by the plaintiff from the judgement of the Supreme Court of British Guiana (Trial DivisionDATE, J)
dated 18 December 1958, dismissing the action. The facts appear in the judgment of Archer Ag CJ.
Luckhoo Q C (instructed by Carlos Gomes) for the appellant
Haynes (instructed by OM Veals) for respondent

386
ARCHER Ag CJ. In 1937 the respondent founded a church at Bartica, British Guiana, under the name of
the Bartica Holiness Tabernacle, of which he became the first minister. During the year 1941 the name of
the church was changed to the Christian Catholic Holiness Tabernacle and from 29 December 1941, the
respondent began to receive financial assistance from the Christian Catholic Church, Zion, Illinois, in the
United States of America (hereinafter referred to as the American Church), a church incorporated under the
laws of the State of Illinois. In 1945 there was a further alteration in the name of the respondents church
and it became the Christian Catholic Church. On 15 December 1950, the respondent as Superintendent of
the Christian Catholic Church and his successors in that office were created a body corporate with perpetual
succession by the Christian Catholic Church (Incorporation) Ordinance, Cap 226 [BG]. On 27 August 1958,
Carl Q Lee, Attorney of the American Church and of Michael J Mintern, General Overseer of that church,
notified the respondent by letter that he would cease to be Superintendent and Overseer of the Christian
Catholic Church in British Guiana (hereinafter sometimes referred to as the local church) from the date of his
receipt of that letter and called upon him to deliver up all transports, leases and documents of title to all
immovable property, and all moneys and funds and movable and immovable property belonging to, and
owned by, the local church, to Samuel Harrichand of Anna Catherina, West Coast Demerara, whom, by a
letter of even date, Carl Q Lee, acting in the aforesaid capacity, purported to appoint as Superintendent of

the local church, the appointment to take effect from the date of the removal of the respondent from office.
The respondent ignored this supposed letter of dismissal. On 27 August 1958, the date of these two letters,
the writ in the action out of which this appeal arises was issued. The writ is in the name of the Christian
Catholic Church in British Guiana as plaintiff and was taken out by Samuel Harrichand, who is described in
the writ as Superintendent of the Christian Catholic Church in British Guiana. The claim is for a declaration
that the respondent had ceased to be the Superintendent of the local church and that Samuel Harrichand
had become the Superintendent in his place, an order for the restitution and return of certain documents and
goods, and other relief.
Several points were argued in the court below but the main point agitated and on which the trial judge
based his decision was whether or not the local church was a branch of the American Church and subject to
the bye-laws of that church. The judge held that it had not been proved that the respondents appointment
as Superintendent of the local church was governed by those bye-laws and dismissed the action. The
appellant now asks that the judgment in the court below be set aside and judgment entered for the
appellant. Alternatively, the appellant seeks an order for a new trial or leave to discontinue the action.
There was a lamentable paucity of evidence before the judge. The parties elected to have the action
tried on the affidavit evidence of Carl Q Lee and the respondent and to forgo cross-examination. There
were points of variance between these two affidavits which were themselves palpably deficient. The judge
considered the evidence placed before him to be quite inadequate but he felt himself obliged to adjudicate
upon it.
In this court counsel were asked to confine themselves in the first instance to the question of a new trial.
Counsel for the appellant conceded that the trial had been unsatisfactory and submitted that both parties
had been equally at fault. Counsel for the respondent resisted an order for a new trial and said that as the
plaintiff had chosen to rely on the evidence which the judge had before him the respondent should be
allowed to hold his judgment.
If Samuel Harrichand has not been validly appointed to be the Superintendent of the local church he
had no authority to issue the writ in the name of the local church and the title of the action therefore begs the
very question to be decided.

387
The dispute is essentially one between Samuel Harrichand and the American Church on the one hand, and
the respondent on the other, but the American Church is not a party to the proceedings. The respondent did
not enter a conditional appearance or make an application to have the writ set aside and no preliminary
point of law was argued before the judge. The affidavits were treated as the pleadings and evidence and
counsel addressed the judge on them.
Order 34, r 1, of the Rules of the Supreme Court [BG] provides that the evidence of witnesses shall
ordinarily be given orally in open court. Parties may agree that evidence shall be taken by affidavit but such
agreement does not tie the hands of the judge in the way that counsel in the court below persuaded the
judge that it did. The court had always had jurisdiction after reading the affidavits on both sides, and
considering them unsatisfactory, to order the witnesses to be examined viva voce at the trial, and to refuse
to have the affidavits then read. This was the course adopted in Lovell v Wallis ((1883), 53 LJ Ch 494, 49 LT
593, 22 Digest (Repl) 515, 5725), in circumstances which were remarkably similar to the circumstances in
the present case. The trial judge should have followed the same course.
Section 10 (1) (a) of the Federal Supreme Court (Appeals) Ordinance, No 19 of 1958 [BG], provides
that on the hearing of an appeal from an order of the Supreme Court of British Guiana in any civil cause or
matter the Federal Supreme Court shall have power to confirm, vary, amend, or set aside the order or make
any such order as the court from whose order the appeal is brought might have made, or to make any order
which ought to have been made, and to make such further or other order as the case may require. Section
10 (2) provides, inter alia, that the Federal Supreme Court may make any such order on such terms as it
thinks just to ensure the determination on the merits of the real question in controversy between the parties.
Section 12 (1) provides that the court shall have power to set aside the order appealed against and order
that a new trial be held if it appears to the court that a new trial should be held. The court also has power to
order any witness who would have been a compellable witness at the trial to attend and be examined before
the court or before a person appointed by the court.
To allow the respondent to succeed on the ground that the appellant has failed to discharge the onus of
proof would, in the circumstances of this case, be to prevent and not to ensure the determination on the
merits of the real question in dispute. In City Tote, Ltd v Chin (unreported), ( No 5 of 1954, West Indian
Court of Appeal), decided by the West Indian Court of Appeal, to which counsel for the appellant has
referred us, a similar situation appears to have arisen. There is no report of the case but counsel has
informed us that in that case the parties had agreed the facts and there was nothing controversial in the
affidavits. Neither party had asked for a retrial but the West Indian Court of Appeal nevertheless set aside
the judgment and ordered a new trial.
I think that the appropriate order that should be made in this case is an order setting aside the judgment
and for a new trial. Both parties are to blame for the unsatisfactory result and the costs of this appeal and of

the first trial should abide the result of the new trial. I do not think that it is necessary to give any directions
concerning the new trial. The judge will have ample power to deal with the matter at the rehearing. It
should, however, be understood that the parties are to be at liberty to file such pleadings as they may be
advised. There should also be an injunction in the terms of the interim injunction granted on 27 August
1958, until the determination of the new trial in the court below.
WYILE J. I agree that there should be an order for a new trial. I agree with the other members of this court
that the judge below, while appreciating that the issues could not be properly tried without oral evidence,
does not appear to have appreciated the powers the court possessed in this respect, but appears to have
accepted the submission of counsel that the court had no power to order oral evidence because of the
provisions of O 34, r 2, of the Rules of the Supreme

388
Court [BG]. In fact, the court was engaged in the trial of an action and this rule was not applicable. On the
record, it seems possible that the provisions of O 34, r 1, of the RSC were not complied with. However that
may be, as the trial judge himself points out, in the result the trial has been most unsatisfactory in so far as
the elucidation of the real issues in this case are concerned, and the only course open to remedy this state
of affairs is to order a new trial.
I do not agree that the circumstances as disclosed before this court warrant the issue of an interim
injunction. No injunction has been in force since the judgment of the court below given over seven months
ago and there was no evidence before this court as to the present position in regard to the various items of
property referred to in the previous interim injunction. If a new trial is ordered, it will be open to the plaintiff
to apply to the court below in the usual manner and his application will presumably be supported by
evidence on affidavit as to the present position of the property.
Costs of the appeal and of the first trial should abide the result of the new trial.
LEWIS J. I agree that this case should be sent back for a new trial.
The affidavits on which the case was tried contained conflicting statements on vital issues and were
silent on matters which required elucidation. In these circumstances the judge on more than one occasion
suggested that oral evidence be taken but this was opposed by both counsel. The court was thus deprived
of evidence which was essential to a proper trial of the issues. Had the judges attention been drawn to
Lovell v Wallis ((1883), 53 LJ Ch 494, 49 LT 593, 22 Digest (Repl) 515, 5725), it seems probable that he
would not have considered himself bound by the agreement of counsel and would have exercised his
discretion to order that oral evidence be given. The trial was most unsatisfactory and a new trial must be
ordered.
On the question of an injunction, it is now over seven months since the injunction of 27 August 1958,
was discharged and in my view no good reason has been adduced for ordering a fresh injunction.
I agree that the costs of the first trial and of this appeal should abide the result of the new trial.
Appeal allowed. New trial ordered.

(1959) 1 WIR 389

EInure Estates Limited v The Village Council Of The Buxton And

Friendship Village District
FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
ARCHER AG CJ, WYLIE AND LEWIS JJ
22 JULY 1959

Contract Right of way Effect of agreement on right to collect toll Section 94 of the Local Government
Ordinance, Cap 150 [BG].
In 1943 the EE, Ltd, entered into an agreement with the Village Council of B & F whereby the company
undertook to carry out certain works and to pay $500 per annum for so long as Plantation Lusignan
continued in cultivation in consideration of a grant of a right of way along certain canals of the Village
Council.

Section 94 of the Local Government Ordinance, Cap 150 [BG], empowers the Council to charge tolls for
punts or other craft passing through their canals.

389
In their statement of claim the company claimed an injunction to restrain the Council, their servants and
agents from demanding tolls from the company on their punts passing along the Councils canals.
Held: that the Council was competent to and did by their contract, commute their tolls for an annual
payment. By that contract they are bound and they cannot now levy tolls upon the companys punts.
Appeal allowed.
Cases referred to
Hungerford Market Co v City Steamboat Co (1860), 3 E & E 365, 30 LJQB 25, 3 LT 732, 25 JP 213, 7 Jur
NS 67, 121 ER 479, 44 Digest 99, 787
Lees v Manchester & Ashton Canal Co (1809), 11 East, 645, 103 ER 1155, 38 Digest 409, 990
York Corpn v Leetham (Henry) & Sons, Ltd [1924] 1 Ch 557, 94 LJ Ch 159, 131 LT 127, 40 TLR 371, 68 Sol
Jo 459, 22 LGR 371, Digest Supp
Appeal
Appeal by the EE, Ltd, from the judgment of the Supreme Court of British Guiana (Trial DivisionPhillips J)
dated 3 October 1957, reserving to the Village Council the right to charge a toll on the EE, Ltds punts. The
facts appear in the judgment of Lewis J.
Stafford QC (instructed by J Edward de Freitas) for the appellants
Burnham (instructed by H B Fraser) for the respondents
LEWIS J. The appellants claimed against the respondents, a local authority, a declaration that a parol
agreement for a right of way over and along a canal and dams on the Kryenhoff Empolder, made with the
appellants in consideration of their undertaking certain works and paying an annual sum, was valid and
binding on the local authority; a further declaration that they are entitled to a grant of and/or to enjoy the said
right of way so long as their estate known as Plantation Lusignan continues in cultivation or, alternatively, for
a period of 99 years from 1 January 1944; an order for the specific performance of the agreement; a further
declaration that the local authority are not entitled to determine the right of way nor to prevent them from
using the canals or dams, nor to levy a toll on their punts passing along the canal; and an injunction to
restrain the local authority, their servants and agents, from interfering with the enjoyment of their franchise.
The agreement was alleged to have resulted from correspondence in the year 1943 between the company,
the local authority, the local government department and the District Commissioner, a government official.
The trial judge held that the respondents had made a private contract with the appellants to allow the
appellants punts free and unrestricted use of the waterway upon the payment by the appellants of the
annual sum of $500, ordered specific performance of that contract, and granted an injunction restraining the
respondents from preventing the appellants from having the free and unrestricted use of the waterway; but
he also held that the respondents could nevertheless exact tolls from the appellants under s 94 of the Local
Government Ordinance, Cap 154 [BG].
The appellants complain against the following portions of the judgment in which the judge held that tolls
may be demanded from the appellants, namely:
The plaintiff company, having therefore been granted a pass, were put in the same position with
respect to their punts as the cane farmers punts, and if it is conceded that tolls could be exacted from
the cane farmers on the passing of their punts pursuant to the provisions of s 90 (now s 94 of Cap
150), then I can see no legitimate reason why notwithstanding this private contract, the same cannot
be exacted, should it be deemed advisable,

390
from the plaintiffs subject however to the approval of the Local Government Board.
****
For my own part I do not see in the instant agreement that the defendant Council have deprived
themselves of the power to charge the plaintiffs company such tolls as might enable them to cope with
any emergency under the powers contained in s 90 (now s 94 of Cap 150).
Section 94 of the Local Government Ordinance, Cap 150 [BG], is as follows:

The local authority of any district may charge tolls, according to a tariff to be posted up at the
village office or some other conspicuous place within the district, for bateaux, punts, or other craft,
passing through any of the trenches, aqueducts, or kokers within the boundaries of the district, but no
toll shall be charged until the tariff has been approved by the Board.
The question for decision is whether the respondents are entitled to have the annual payment under the
contract and also to levy a toll on the appellants punts. It is fair to the respondents to say that they have
never put forward such a claim; and at the hearing of this appeal their counsel presented no argument in
support of it and informed the court that his clients would abide by the courts ruling.
The trial judge, in reaching his conclusion that the respondents were entitled to levy a toll in addition to
the annual payment, took the view that the contract merely placed the appellants in the same position as
villagers, and that since the toll could be levied on villagers, who, he said, had a right to pass along the
canal, it could also be exacted from the appellants. He said:
The villagers punts already had this right to pass, which right the plaintiffs were now seeking also
to acquire. So that in the year 1944 after the agreement was made not only the villagers punts would
use the Kryenhoff Empolder in this way but also the plaintiffs.
In taking this view the judge appears not to have given sufficient consideration to the true meaning and
purpose of a toll and to the real effect of s 94. Whatever rights the villagers may have had in respect of the
canal before a toll was imposed were restricted and curtailed upon its imposition, and thereafter they could
not enjoy the free and unrestricted use of the canal without payment of the toll. The consideration for the toll
is the accommodation provided and the service rendered, namely, the facility of passage along the
waterway. This is the same facility for which the appellants bargained and agreed to make their annual
payment.
It appears that in 1943 when the respondent Council was considering whether the appellants proposals
should be accepted, the question of tolls then being charged upon farmers punts was discussed. The
Council decided that having regard to the number of punts that would pass along the waterway the sum of
$240 offered by the company by way of financial consideration was insufficient compensation. In the
words of the District Commissioners letter of 11 November 1943, conveying the Councils decision, they
assessed the value of the facilities of the right of way at $500 per annum; and this sum the appellants
agreed to pay. This was, in effect, a decision to accept a commuted payment of $500 per annum in lieu of
levying tolls upon individual punts and the only question is whether they were entitled so to do.
In Hungerford Market Co v City Steamboat Co, Ltd ((1860), 3 E & E 365, 30 LJQB 25, 3 LT 732, 25 JP
213, 7 Jur NS 67, 121 ER 479, 44 Digest 99, 787) it was held that a company empowered by statute to take
tolls in return for a public service is not bound, independently of express enactment, to exact the same tolls
from all persons alike, but is at liberty to remit the tolls, or any portion of them, to

391
particular persons, at its pleasure and discretion. Cockburn CJ, in delivering the judgment of the court,
said (30 LJQB at p 380):
We have therefore to consider whether a company entitled to take tolls in return for public service
is bound, independently of express provision, to exact the same tolls from all persons alike, or is at
liberty, if so minded, to remit the tolls, or any portion of them, to particular individuals at its pleasure
and discretion. No authority has been adduced for the former of these propositions. In Lees v The
Manchester & Ashton Canal Co ((1809), 11 East, 645, 103 ER 1155, 38 Digest 409, 990) the
observations of Lord Ellenborough go no further than to show that, on grounds of public policy, it may
be desirable that such an obligation should attach to the power of a public company to take toll. Yet
authority would certainly seem to be required to establish a proposition directly at variance with the
well-known axiom that everyone is at liberty to renounce a right established in his favour. The power to
take the tolls is conferred on the company in consideration of service to be rendered, and
accommodation to be afforded, to the public. If the service be rendered and the accommodation
afforded, the obligation of the company is fulfilled.
Consideration of s 94, which requires a tariff of tolls for bateaux, punts or other craft to be approved by
the Board, confirms the view that the local authority is entitled to take various and differing circumstances
into consideration in formulating their tariff, and is not bound to fix a uniform toll in respect of all craft, or
even of every type of craft.
Nor is the authority bound by the Ordinance, as was the case in York Corporation v Henry Leetham and
Sons, Ltd ([1924] 1 Ch 557, 94 LJ Ch 159, 131 LT 127, 40 TLR 371, 68 Sol Jo 459, 22 LGR 371, Digest
Supp), to take only such reasonable tolls or rates as shall be so laid as aforesaid and no other. Section 89

of the Ordinance, which places the waterways under their management and administration, imposes no
limitations upon the arrangements they may make for the purposes of such management with persons
desiring the use of the waterways.
In my opinion, the respondents were competent to, and did by their contract, commute their tolls for an
annual payment. By that contract they are bound, and they cannot now levy tolls upon the appellants punts.
I do not consider it necessary to discuss the submission made by counsel for the appellants that the
Kryenhoff Empolder having been acquired under a Crown grant is the private property of the Village
Authority and that they are entitled to administer it without the aid of ss 89 and 94 of the Local Government
Ordinance, and accordingly I express no opinion on this question.
I would allow the appeal. The judgment of the court below should be varied as prayed and set out in
paragraph 4 of the Notice of Appeal by inserting in the formal Order of the court between the words user
and so the words: and from demanding from the plaintiffs tolls on the plaintiffs punts passing along the
said canal.
By consent there will be no order as to costs.
ARCHER Ag CJ. I concur.
WYLIE J. I also concur.
Appeal allowed.

392
(1959) 1 WIR 393

Singh v Jarvis
FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
ARCHER AG C J, WYLIE AND LEWIS JJ
22 JULY 1959

Procedure Application for a postponement Death of appellant Where rules contain no special provision
the English practice shall apply.
On 16 July 1959, CS applied for a postponement of the hearing of his appeal to the next sitting of the court
in British Guiana and the court intimated that the application should be renewed later in that sitting of the
court. On 22 July 1959, counsel who made the application on behalf of the appellant, as amicus curiae,
informed the court that the appellant had died on 20 July 1959, and asked that the appeal be taken off the
list so as to enable the personal representative of the appellant to be substituted as a party.
Held: (i) that where the rules contain no special provision the jurisdiction of the court shall be exercised in
conformity with the law and practice for the time being in force in England in relation to civil matters in the
Court of Appeal.
(ii) that under the English practice the personal representative of an appellant may prosecute the appeal and
under that practice if a person not on the record applies for leave to appeal he will be allowed the necessary
time for appealing.
Application granted.
Case referred to
Ranson v Patton (1881), 17 ChD 767, CA
Carter amicus curiae (instructed by H B Fraser) (for the respondent)
Sir Eustace Woolford QC for the respondent
ARCHER Ag CJ. On 16 July 1959, an application was made by counsel on behalf of the appellant in this
appeal, for a postponement of the hearing of the appeal to the next sitting of the court in British Guiana, and
the court intimated that the application should be renewed later in this sitting. On 22 July 1959, counsel, as
amicus curiae, informed the court that the appellant had died on 20 July 1959, and asked that the appeal be

taken off the list in order to enable the personal representative of the appellant to be substituted as a party.
There is, understandably, as yet no active representative of the appellants estate but counsel for the
respondent has opposed the application.
Rule 12 of O 1 of the Federal Supreme Court (Appeals from British Guiana) Rules, 1959, provides that
in matters of practice and procedure where no special provision is contained in any act of the Legislature of
the West Indies or rules of court made under the British Guiana (Appeals) Order in Council, 1957, the
jurisdiction of the court conferred upon it by virtue of that Order and of the Federal Supreme Court (Appeals)
Ordinance, 1958 [BG], shall be exercised as nearly as may be in conformity with the law and practice for the
time being in force in England in relation to civil matters in the Court of Appeal. There is no such special
provision contained in any such legislation or subsidiary legislation. In the Annual Practice, 1959, at p 1658
in the rubric to O 58, r 3, under the heading Particular Instances, the following statement appears:
On the death of an appellant, his personal representative (on obtaining an order to carry on the
proceedings under O 17, r 4) may prosecute the appeal,
and Ranson v Patton ((1881), 17 ChD 767, CA) which is referred to supports that statement. Further on, in
the same rubric, it is said:
If a person, not on the record, applies for leave to appeal as soon as he knows of the judgment or
order, he will be allowed the necessary extension of time for appealing.
Not only, therefore, is the opportunity given to the personal representative to

393
make an application to be substituted as a party to the appeal, but extension of time within which to
appeal is granted to him where the time for appealing has expired before he learns of the judgment or order.
There is therefore even stronger reason in this case to allow time for the appellants estate to be
represented.
Judgment was obtained against the appellant on 24 October 1958. There was no stay of execution and
the respondent was therefore entitled to enforce the judgment which she had obtained. This she must have
attempted to do for her counsel informed us that opposition to sale on execution has been entered. He has,
however, asked for an order for protection of the respondents interest if the court grants the application for
further postponement of the appeal. In the present state of the appeal there is no person against whom
such an order is enforceable and no order of this court could dispose of the opposition which stands in the
way of the respondent obtaining the fruits of her judgment.
The application is granted and the case will be taken off the list for this sitting of the court. If the
respondent is vigilant she will see to it that there is no undue delay in bringing the appeal before the court
again.
WYLIE J. I concur.
LEWIS J. I concur.
Application granted.

(1959) 1 WIR 394

Delph v Delph
FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
ARCHER AG C J, WYLIE AND LEWIS JJ
23 JULY 1959

Divorce Undefended Effect of order that oral evidence be dispensed with and affidavit in verification may
be read as evidence Intention to bring matrimonial consortium to an end How to be ascertained.
ED, who resides in France, filed a divorce petition against her husband, who is domiciled in British Guiana.
In her petition she alleged acts of cruelty which were verified in her supporting affidavit.
The petition was undefended.

By an order of a judge in Chambers oral evidence was dispensed with and permission was given to read the
affidavit in verification as evidence. On the hearing of the petition the trial judge dismissed it on the ground
that there was no convincing evidence that the respondents conduct was of such a character as to have
caused danger to the life, limb or health of ED or to give rise to a reasonable apprehension of such danger.
Held: (i) that an offending spouses actions are to be judged from the point of view of a reasonable spouse;
(ii) that the alleged incidents must not be treated seriatim;
(iii) that it is necessary for the court to have before it a general picture of the married life of the parties;

394
(iv) that the order permitted the minimum proof of the facts averred in the petition and has allowed for no
expansion of those allegations or of evidence of surrounding circumstances which would have afforded the
court a complete picture of the married life of the parties;
(v) that EDs case appears to be a prima facie one which deserves further investigation.
Appeal allowed; new trial ordered.
Cases referred to
Russell v Russell [1895] P 315, 64 LJP 105, 73 LT 295, 44 WR 213, 11 TLR 579, 39 Sol Jo 722, CA, on
appeal, [1897] AC 395, HL, 27 Digest (Repl) 356, 2948
Holborn v Holborn [1947] 1 All ER 32, 176 LT 57, 111 JP 36, 63 TLR 87, 45 LGR 90, 27 Digest (Repl) 703,
6719
Evans v Evans (1790), 1 Hag Con 35, 161 ER 466, 27 Digest (Repl) 294, 2398
Buchler v Buchler [1947] P 25, [1947] 1 All ER 319, [1947] LJR 820, 176 LT 341, 111 JP 179, 63 TLR 100,
91 Sol Jo 99, 45 LGR 442, CA, 27 Digest (Repl) 350, 2899
Fromhold v Fromhold [1952] 1 TLR 1522, 96 Sol Jo 360, CA, 3rd Digest Supp
Eastland v Eastland [1954] 3 All ER 159, [1954] P 403, 98 Sol Jo 287, 3rd Digest Supp
Jamieson v Jamieson [1952] 1 All ER 875, [1952] AC 525, 116 JP 226, [1952] 1 TLR 833, HL, 3rd Digest
Supp
Lang v Lang [1954] 3 All ER 571, [1955] AC 402, 119 JP 368, 98 Sol Jo 803, PC, 3rd Digest Supp
Waters v Waters [1956] 1 All ER 432, [1956] P 344, 120 JP 105, 100 Sol Jo 172, 3rd Digest Supp
Ramsden v Ramsden [1954] 2 All ER 623, 118 JP 430, 98 Sol Jo 559, DC, 3rd Digest Supp
Appeal
Appeal by ED from the judgment of the Supreme Court of British Guiana (Trial Division Bollers Ag J) dated
30 December 1958, dismissing the petition. The facts appear in the judgment of Archer Ag C J.
King for the appellant (instructed by HCB Humphrys) (for the appellant)
ARCHER Ag CJ. This is an appeal from a judgment of the Supreme Court dismissing an undefended
petition for divorce. The parties were married on 3 February 1950, and there is one child of the marriage.
The petition which is dated 26 August 1958, alleges cruelty and desertion. Paragraphs 7, 8, 9, 10, 11 and
12 read as follows:
7. That the respondent has frequently used violent and obscene language to the petitioner. The
respondent failed to give the petitioner an adequate housekeeping allowance, and when she bought
certain items of food for the said child of the marriage would accuse her of extravagance and quarrel
with her.
8. In or about the month of October 1953, the respondent during a quarrel shouted at and used
abusive language to the petitioner then struck her on both sides of the face with his open hand, seized
her by the shoulders and shook her against a wardrobe thereby bruising her shoulders and finally
locked her in the bedroom for about three-quarters of an hour despite the demand to be let out.
9. The respondent made persistent sexual demands of the petitioner which he knew the petitioner
regarded as excessive. On several occasions when the petitioner refused the respondent intercourse
he forced her to have intercourse with him, seizing her by the throat and squeezing, leaving bruises
which caused the petitioner to have to wear a scarf at work.

10. In April 1954, the petitioner awoke one night to find the respondent lying on top of her with
hands round her throat demanding intercourse. The

395
petitioner resisted and screamed loudly, awakening the child which also commenced to cry and
scream. Despite this the respondent forced the petitioner to have intercourse with him.
11. That by reason of the respondents conduct as aforesaid the petitioners health was affected,
she suffered from chronic headaches, and in 1953 she consulted a physician and was referred to the
Maida Vale Hospital for Nervous Diseases, but she had to stop attending at the said Hospital on the
respondents insistence.
12. After the incidents described in paragraphs 9 and 10 the petitioner became terrified of the
respondent, life with him became impossible, and in September 1954, she left him and went to live on
her own. Since that date the respondent has failed and neglected to maintain the petitioner and the
said child.
The respondent who was served with a copy of the petition on 23 October 1958, has neither
entered an appearance nor filed an answer. On 12 November 1958, the solicitor for the petitioner took
out a summons asking for one of the following orders, namely:
(a) that the statements contained in the petitioners affidavit filed in support of the petition be
accepted as sufficient evidence;
(b) that a further affidavit be filed in support of the petition;
(c) that the petitioner be examined in the United Kingdom on oath before a Commissioner or any
such person as the court may deem fit.
In the affidavit in support of the summons the petitioners solicitor set out that the petitioner resides in the
Republic of France and that it would be very inconvenient and expensive for her to visit British Guiana in
order to give evidence at the hearing of her petition. On 15 December 1958, Stoby J, made an order
dispensing with the oral evidence of the petitioner and allowing her affidavit to be read as her evidence upon
the trial of her petition provided that the petition was undefended. The affidavit was the usual affidavit in
verification of the facts alleged in the petition.
The petition was heard by Bollers Ag J, on 30 December 1958. He found that the grounds on which
dissolution of the marriage was sought had not been proved and dismissed the petition. He expressed
himself in the following language:
Assuming that all this evidence was true in my view the facts did not come within the definition of
cruelty as laid down by the House of Lords in Russell v Russell ([1895] P 315, 64 LJP 105, 73 LT 295,
44 WR 213, 11 TLR 579, 39 Sol Jo 722, CA, on appeal, [1897] AC 395, HL, 27 Digest (Repl) 356,
2948). There was no convincing evidence that this conduct was of such a character as to have
caused danger to the life of the petitioner, to her limb or health bodily or mental, or as to give rise to a
reasonable apprehension of such danger. If there was in fact danger to the petitioners life it would
have been a simple matter for her to have obtained an affidavit from the medical officer at the hospital
to this effect, and stating that when he saw her she was in poor mental health which in his opinion was
brought about by the allegations she was then making in regard to the conduct of her husband. In my
view this evidence of the respondent amounted to no more than mere wear and tear of marriage as
dealt with by the legal authorities.
In another passage he said:
It is to be noted that the acts of cruelty alleged by the petitioner took place in October 1953, and
April 1954. She did not leave the matrimonial home and go to live on her own until September 1954.
On the date that she left the home no act of cruelty is alleged. It follows therefore that the acts of
cruelty alleged if indeed recognised by the law as such were condoned by her. The burden of
disproving the condition falls clearly on her, facts having emerged which suggest it.

396
He then quoted a portion of the judgment of Lord Merriman in Holborn v Holborn ([1947] 1 All ER 32, 176 LT
57, 111 JP 36, 63 TLR 87, 45 LGR 90, 27 Digest (Repl) 703, 6719) and observed:
Here again the evidence of the petitioner was not assisted by medical evidence which would have
confirmed her statement that her health suffered as a result of persistent sexual intercourse.
He concluded this part of his judgment thus:

The petitioners evidence on the allegation of cruelty was therefore not grave and weighty and did
not show an absolute impossibility that the duties of married life can be discharged (per Lord Stowell
in Evans v Evans ((1790), 1 Hag Con 35, 161 ER 466, 27 Digest (Repl) 294, 2398)).
He then dealt with the issue of desertion and, after referring to the judgment of Lord Greene, M R, in Buchler
v Buchler ([1947] P 25, [1947] 1 All ER 319, [1947] LJR 820, 176 LT 341, 111 JP 179, 63 TLR 100, 91 Sol Jo
99, 45 LGR 442, CA, 27 Digest (Repl) 350, 2899), decided that the petitioner had not satisfied him that the
conduct alleged against the respondent had driven her from the matrimonial home or that he had had the
intention of bringing the matrimonial consortium to an end. In the final portion of his judgment the trial judge
summarised his conclusions in the following way:
In the petition there was no allegation that the respondent ordered the petitioner to leave the
matrimonial home, there was no convincing evidence of physical violence which caused injury to
health and the evidence of persistent sexual demands was not of a serious nature as medical
testimony did not confirm the allegation. This evidence, therefore, which fell short of any matrimonial
offence, was not of a grave and weighty nature and in the words of Asquith L J, it did not exceed in
gravity such behaviour vexatious and trying though it may be as every spouse bargains to endure
when accepting the other for better for worse. The evidence therefore was not capable of being
regarded as equivalent to an expulsion from the matrimonial home and even if it were I did not find that
the conduct of the respondent as alleged was of a grave and convincing character and that he
deliberately turned his wife out of doors with the intention of bringing the consortium to an end.
The grounds of appeal are:
(1) That the learned trial judge erred in holding that the evidence of the appellant was not sufficient
to support the allegations of cruelty and malicious desertion.
(2) The learned trial judge erred in holding that the appellant was not entitled to succeed in her
petition because of a lack of medical or other evidence to show that the respondents conduct was
directly responsible for the appellants state of health.
(3) The learned judge erred in holding that the incidents alleged taken either singly or as a course
of conduct did not amount to legal cruelty.
(4) The learned judge erred in holding that the respondents conduct was not such as to cause and
did not cause the appellant to leave the matrimonial home.
(5) In view of the evidence of actual physical assaults and excessive sexual intercourse the learned
judge erred in holding that the respondents conduct was not directed to the appellant or did not cause
the appellant danger to life or limb or health or give rise to a reasonable apprehension of such danger.
(6) The learned judge though he expressed a desire to have seen corroborative medical evidence
did not indicate until after the appellant had closed her case and he was reviewing the evidence prior
to giving decision that he considered the lack of such evidence fatal to the appellants case, and when
at that stage counsel for the appellant applied for an adjournment to furnish such evidence the learned
judge refused the application.
The grounds on which a Court of Appeal will disturb the findings of fact arrived

397
at by the trial judge who has had the advantage of seeing and hearing the witnesses and observing their
demeanour are well established and need not be repeated but no such considerations arise in this case.
The petitioner did not appear before the judge and he was therefore in no better position than is this court to
ascertain the facts. I proceed therefore to consider the matter unfettered by the conclusions to which he felt
impelled.
Whether or not the respondent has treated the appellant with cruelty is a question of fact. It is well
settled that there may be cruelty in the popular sense without injury to health and, of course, there may be
injury to health without cruelty: it is trite that the court cannot relieve against mere unhappiness. The trial
judge considered that the absence of medical evidence corroborating the appellants evidence concerning
injury to her health was fatal to proof of cruelty. But medical evidence, though desirable, was not essential if
the appellants evidence was believed, and the judge assumed her evidence to be true. Bruises and the like
without more may be evidence of cruelty. In Fromhold v Fromhold ([1952] 1 TLR 1522, 96 Sol Jo 360, CA,
3rd Digest Supp) it was held that it is open to a judge or jury who are satisfied that physical violence by the
respondent has produced on the petitioners body bruises, cuts or other physical injuries, to find that a case
of cruelty has been made out without proof of injury to general health, and in Eastland v Eastland ([1954] 3
All ER 159, [1954] P 403, 98 Sol Jo 287, 3rd Digest Supp) Karminski J, found that the wifes health had
suffered and that her nervous system was affected although no medical evidence was called, being satisfied
that her evidence and that of her mother was true. There is no apparent reason, however, why in this case

some person or persons could not have been called to say that he or they saw the appellant wearing a scarf
at work which would have been some corroboration of the existence of the appellants injuries though not of
the fact that the respondent had inflicted them upon her.
The judge felt that the conduct complained of amounted to no more than mere wear and tear of
marriage as dealt with by the legal authorities. It would, I think, be surprising if not alarming if the authorities
justified the holding that the conduct alleged against the respondent was no more than a wife had
undertaken to endure when she entered the marital state and I would find it exceedingly difficult to accept
such a contention. The danger of treating the alleged incidents seriatim has also to be avoided. In
Jamieson v Jamieson ([1952] 1 All ER 875, [1952] AC 525, 116 JP 226, [1952] 1 TLR 833, HL, 3rd Digest
Supp), Lord Normand said ([1952] AC at p 535):
My Lords, I think that it does not do justice to the averments to take up each alleged incident one
by one and hold that it is trivial or that it is not hurtful or cruel and then to say that cumulatively they do
not amount to anything grave, weighty or serious. The relationship of marriage is not just the sum of a
number of incidents, and in this case it has been overlooked that all the incidents averred are said to
have been inspired by the respondents intention to impose his will upon his wife without consideration
of her feelings or health. Moreover, it is impossible in the bald averments of a condescendence to
convey the effects of the conduct of one spouse on the feelings and through the feelings on the health
of the other spouse. What on paper may seem little more than a series of pin-pricks may present a
very different aspect when it has been developed in evidence, though the evidence does not exceed
by a single word the bounds set by the record.
The judge appreciated that conduct which falls short of cruelty may nevertheless constitute desertion
but held that the evidence fell short of any matrimonial offence. The reasons for this conclusion are
contained in the last passage from his judgment which I have quoted earlier in this judgment. * Until Lang v
Lang ([1954] 3 All ER 571, [1955] AC 402, 119 JP 368, 98 Sol Jo 803, PC, 3rd Digest Supp) there were two
competing tests of intention to bring the

398
matrimonial consortium to an end and which may be conveniently referred to as the subjective test and
the objective test. According to the former test an intention to injure can co-exist, though it conflicts, with a
desire not to bring the matrimonial consortium to an end; according to the latter, the offending spouses
actions are to be judged from the point of view of a reasonable spouse and if such a person would know that
his behaviour will probably result in the departure of the other spouse from the matrimonial home, the
offending spouse is adjudged to have been guilty of desertion. In Lang v Lang ([1954] 3 All ER 571, [1955]
AC 402, 119 JP 368, 98 Sol Jo 803, PC, 3rd Digest Supp) the Privy Council has sanctioned the objective
test and has held that gross brutality is prima facie evidence of cruelty ([1954] 3 All ER at p 579):
Prima facie, a man who treats his wife with gross brutality may be presumed to intend the
consequences of his acts. Such an inference may, indeed, be rebutted, but if the only evidence is of
continuous cruelty and no rebutting evidence is given, the natural and almost inevitable inference is
that the husband intended to drive out the wife. The court is at least entitled and, indeed, driven, to
such an inference unless convincing evidence to the contrary is adduced. In their Lordships opinion,
this is the proper approach to the problem and it must, therefore, be determined whether the natural
inference has been rebutted in the present case.
The appellant in this case has not therefore to prove a deliberate intention on the part of the respondent to
turn her out of doors. It is essential, however, to bear in mind what was said in Jamieson v Jamieson ([1952]
1 All ER 875, [1952] AC 525, 116 JP 226, [1952] 1 TLR 833, HL, 3rd Digest Supp) about the necessity for
the court to have before it a general picture of the married life of the parties. Lord Merriman said ([1952] AC
at p 538):
My Lords, while I wish to make it plain that I cast no doubt on the jurisdiction of the court to
entertain in a consistorial cause the plea of relevance, I agree with Lord Keith that it is desirable to
bear in mind, particularly in connection with the charge of cruelty, how much depends on the general
picture of the married life of the parties which it is so difficult to appreciate without a proof.
The same judge said in Waters v Waters ([1956] 1 All ER 432, [1956] P 344, 120 JP 105, 100 Sol Jo 172,
3rd Digest Supp) ([1956] 1 All ER at p 434):
The justices reasons assume that the wife was telling the truth, but that as a matter of law neither
the charge of cruelty nor the charge of desertion was made out. I have said several times before (eg,
in Ramsden v Ramsden ([1954] 2 All ER 623, 118 JP 430, 98 Sol Jo 559, DC, 3rd Digest Supp) that I

have no doubt whatever that justices have a perfect right, like any other tribunal, to throw a case out if
they think there is nothing in it, without waiting to hear the other side. I repeat the caution, however,
that I have coupled with that on previous occasions ([1954] 2 All ER at p 624) that, generally speaking,
particularly in cruelty cases, it is not wise for justices to do so; and I do not limit that only to justices,
because it has been repeatedly emphasised by higher authority that the whole story in these matters is
all-important, particularly in cases which may be described as border-line. In all such cases it is very
important to get the whole atmosphere from both sides.
In this case it can be said that there was an averment of actual intention to hurt, wilfully persisted in
after the respondent knew that the appellants health was being affected, and the appellant may not,
therefore, have to rely on the objective test approved by the Privy Council. The court has, however, been
denied an adequate and general picture of the marriage life of the parties. The petition contains only bald
statements of alleged fact and it is impossible to do justice to the petitioner or to the respondent, although he
has taken no interest in the proceedings, on the basis of such meagre material. It is unfortunate that Stoby
J, made the order which he did. That order permitted the minimum

399
proof of the facts averred in the petition and has allowed for no expansion of those allegations or of
evidence of surrounding circumstances which would have afforded the court a complete and clear picture of
the married life of the parties. A particular instance of the extent to which the court is without useful
knowledge is afforded by the circumstance that nothing is known of the marital relationship between April
1954, when, it is alleged, the respondent demanded sexual intercourse by force, and September 1954,
when the appellant left the matrimonial home. The appellants case appears to me to be prima facie one
which deserves further investigation and I would allow the appeal and order a new trial. The appellant would
thus be given the opportunity to amplify by evidence the case on which she relies.
WYLIE J. I concur.
LEWIS J. I also concur.
Appeal allowed; new trial ordered.

(1959) 1 WIR 400

Kailan v Peter And Others

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
ARCHER AG C J, WYLIE AND LEWIS JJ
23, 24 JULY 1959

Costs Meaning of an order to abide the event of a new trial.

WK sued LP and others on a promissory note. He obtained a judgment which was, however, set aside on
appeal and a new trial ordered with costs of the first trial to abide the event of the new trial. On the new trial
judgment was given against WK and he was ordered to pay the costs of both trials. He appealed.
Held: that result as used in the order means the result of the second trial so far as costs are concerned. In
this case the result of the second trial being that LP and others have the costs of it, they must also have the
costs of the first trial.
Appeal dismissed.
Editorial Note. This appeal was also in respect of other matters which call for no report. The portions of
the judgment referring to those matters have been deleted.
Case referred to
Brotherton v Metropolitan & District Joint Committee (1893), 9 TLR 645, C A, subsequent proceedings,
[1894] 1 QBD 666, CA
Wright (instructed by H B Fraser) for the appellant

Sir Eustace Woolford QC (instructed by v D P Woolford) for the respondents

ARCHER Ag CJ. The order made by this court on 26 June 1958, when it remitted the case for retrial
provided that the costs of the first trial should abide the event of the new trial and be costs in the cause. The
fifth ground of appeal is that the judge erred in law in ordering the appellant to pay the costs of both trials on
the grounds, inter alia, that the proceedings in the first trial were by consent incorporated in those of the new
trial. In support of this ground counsel for the appellant said that the judge failed to exercise his discretion

400
in awarding costs and blindly followed what he thought was a directive from this court, and that if he had
exercised his discretion he might have given only a portion of the costs of the first trial.
What is meant by an order that the costs of a former trial shall abide the result of the new trial was
explained in Brotherton v Metropolitan & District Joint Committee ((1893), 9 TLR 645, C A, subsequent
proceedings, [1894] 1 QBD 666, CA), where Lord Esher, M R, said ([1894] 1 QB at p 667):
The part of the order in question related to costs onlyto the costs of the first trial. It says, in effect,
that the result with regard to the costs of the first trial is to be the same as the result of the second trial
with regard to the costs of that trial. It seems to me clear that the result as used in that order means
the result of the second trial so far as costs are concerned. If the result of the second trial is that the
plaintiff has no costs of that, then the same result must follow as to the first trial.
In this case the result of the second trial being that the respondents have the costs of it, they must also
have the costs of the first trial. I regret that the powers of this court do not extend beyond condemning the
appellant in the costs of this appeal which is wholly without merit. I think that the appeal should be
dismissed with costs.
WYLIE J. I concur.
LEWIS J. I concur.
Appeal dismissed.

(1959) 1 WIR 401

Nurse v John
FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
ARCHER AG C J, WYLIE AND LEWIS JJ
27, 28 JULY 1959

Pleadings Uncertainty as to issues raised Preliminary objection When defence that claim is barred by
lapse of time may be raised.
In his statement of claim W N asked for a declaration that he is the owner of a cottage at Bartica and for an
order compelling F J to transfer the cottage to him.
He alleged that he purchased the cottage from A J who has since died leaving a husband and two sons of
whom F J is one. He also alleged that he paid a portion of the purchase money, that A Js husband is dead
and that he W N is ready and willing to pay the balance of $399 to the person or persons entitled thereto as
the lawful heirs of A J and/or her husband.
F J in his defence denied that W N purchased the cottage but said that the cottage was let to W N by his
grandmother. He also alleged that W Ns claim is barred by lapse of time.
In his defence he made no claim to ownership of the cottage although he was sued in his personal capacity.
Held: that the parties did not appear to have addressed their minds to the issues to be resolved and there
can be no proper adjudication until these issues are ascertained and determined.

Appeal allowed; new trial ordered.

No cases referred to.

401
Appeal
Appeal by W N from the judgment of the Supreme Court of British Guiana (Trial DivisionBollers Ag J) dated
7 January 1959, dismissing the action.
Young (instructed by N C Janki) for the appellant
Weithers (instructed by J E Too Chung) for the respondent
ARCHER Ag CJ. The trial judge decided, in the almost complete absence of evidence and after hearing
argument upon a preliminary point of law, that the appellants action was barred by lapse of time. His
decision presupposes that there is some certainty as to the issues raised, but the pleadings of both parties
are, to my mind, in such an unsatisfactory state, that I feel no such certainty and I am not prepared to make
the assumptions that he did.
In paragraph 2 of the statement of claim the appellant pleaded that he had purchased a cottage from
the mother of the respondent on 3 September 1951, and had paid her part of the purchase price. In
paragraph 3 he alleged that she had delivered possession of the building to him but that he had permitted
her to reside in it until she could make arrangements to live elsewhere. In paragraph 4 he asserted that she
had died intestate on 2 November 1951, leaving a husband and two children, of whom the respondent was
one. There is nothing to show whether the two children were lawful or unlawful, or if one of them was lawful,
and, if so, whether the respondent was that one. In paragraph 7, the death intestate on 9 November 1952,
of Walter Nathaniel John, husband of Ada Letitia John, the mother, is alleged. The grant to him of letters of
administration of the estate of Ada Letitia John is alleged in paragraph 4, but whether or not he administered
the estate or further letters of administration were granted to some person after his death does not appear.
In paragraph 6 the appellant alleged occupation of the house by himself and his family until the end of June
1952, and his installation of a tenant thereafter. The statement of claim does not show why the respondent
is being sued. In paragraph 8 the appellant expresses his willingness to pay the balance of the purchase
price to the lawful heirs of Ada Letitia John or Walter Nathaniel John, but beyond this vague statement the
respondent is not otherwise associated with the claim by any warranted inference.
The defence is equally unhelpful. In paragraph 3 of the defence the respondent pleaded that the
cottage was let to the appellant by the respondents grandmother from 1 July 1952. In paragraph 9 it is
pleaded that the respondent obtained judgment in the Magistrates Court on 24 June 1954, against the
appellant for arrears of rent of the cottage. In paragraph 13 the respondent asserts that he instituted further
proceedings against the appellant in the Magistrates Court on 13 December 1957, for arrears of rent, and in
paragraph 14 he alleged that the appellant was in possession of the cottage from 24 June 1954, as his
tenant. In paragraphs 2 and 4 he denied that the appellant had purchased the cottage or that he was given
possession of it on 3 September 1951. In paragraph 11 he denied that the appellant had ever asked Walter
Nathaniel John to transfer the cottage to him or that Walter Nathaniel John had ever promised to do so. In
paragraph 12 he asserted that the appellant had not, until he brought the action, asserted a claim to the
cottage.
It was in this condition of the pleadings that the action was tried. The judge heard legal argument and
decided that the action was barred by the Limitation Ordinance [BG] and dismissed it with costs.
During the argument and while counsel for the respondent was addressing the judge, counsel for the
appellant admitted the judgment against the appellant for arrears of rent and a certified copy of the
proceedings before the magistrate was by consent admitted in evidence by the judge. These proceedings
appear to have been taken by the respondent and Solomon John, suing by their next friend, and not by the
respondent alone as pleaded in paragraph 9 of the defence.
The subject-matter of the dispute is described in paragraph 2 of the statement

402
of claim as a cottage. This is a neutral word and there is nothing in the pleadings to indicate whether
the transaction between Ada Letitia John and the appellant concerned movable property. The Sale of
Goods Ordinance, Cap 333 [BG], and the Limitation Ordinance, Cap 26 [BG], are only relevant if this is so,
but even if the cottage is a chattel, an allegation to that effect would not alone have been enough to show
that ownership of it had passed to the appellant.
If there was an agreement between Ada Letitia John and the appellant for the sale of the cottage, the
time at which the property in the cottage was to pass would depend on their intention. If the property was
not to pass until the balance of the purchase price had been paid, no cause of action could arise until it was
tendered and demand of delivery and refusal had taken place. The rules for ascertaining intention which are

contained in s 20 of the Sale of Goods Ordinance, Cap 333 [BG], are only applicable where a different
intention does not appear and it is quite impossible, in the absence of evidence, to infer intention from the
bald statements in the pleadings.
In paragraph 9 of the statement of claim the appellant seeks a declaration that he is the owner of the
house, an order for the transfer of the house in his name in the books of the Bartica Village District, and an
injunction to protect his peaceful enjoyment of the house. Whether all or any of this relief is appropriate it is
quite impossible to determine. Indeed, no reference was made to it before the trial judge.
The respondent has been sued in his personal capacity. Why he is being sued at all is not self-evident.
Whether or not Ada Letitia Johns property has passed to him has not been established, nor is there any
statement or evidence as to whether Solomon John died testate or intestate. The respondent has made no
claim to ownership of the cottage in his defence but I do not know if his counsel intended to assert such a
right but to say that any action against him was barred. The parties do not appear to have addressed their
minds to the issues to be resolved and there can be no proper adjudication until these issues are
ascertained and determined. I would allow the appeal and order a new trial, the parties to be at liberty to
amend their pleadings as they may be advised.
I think that both parties are to blame for the uncertainty that surrounds the present pleadings and I
would order that the costs of the first trial and of this appeal should abide the result of the new trial.
WYLIE J. I concur.
LEWIS J. I concur.
Appeal allowed; new trial ordered.

(1959) 1 WIR 403

Mungalsingh v Mungal
FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN C J, WYLIE AND LEWIS JJ
7 OCTOBER 1959

Contract Vendor and purchaser of land Whether the failure to pay the balance of the purchase price is a
repudiation of the contract.
In December 1951, v M agreed to purchase a parcel of land from H M for $3,250 free from encumbrances.
On 7 January 1952, he paid $1,250 on account of the purchase price and was put into possession.
Between April and June, 1952, he paid a further $1,500. He spent $2,000 in repairs to the building on

403
the land and alleged that he paid the balance of the purchase price. He brought an action in which he
claimed specific performance of the agreement. That action terminated with a finding of fact that v M had
not paid the balance of $500.
Held: (i) that the non-payment of the balance of the purchase money has not discharged the contract;
(ii) that H M upon payment to him by v M of the sum of $500 together with interest thereon at 6 per cent. per
annum from 15 January 1952, should execute free from encumbrances a proper conveyance of the land to
v M.
Appeal allowed.
Cases referred to
Mersey Steel & Iron Co v Naylor, Benzon & Co (1884), 9 App Cas 434, 53 LJQB 497, 51 LT 637, 32 WR
989, HL, affg (1882), 9 QBD 648, CA, 12 Digest (Repl) 378, 2966
Ellen v Topp (1851), 6 Exch 424, 20 LJ Ex 241, 17 LTOS 52, 15 Jur 451 155 ER 609, 12 Digest (Repl) 473,
3530
Carter v Scargill (1875), LR 10 QB 564, 32 LT 694, 12 Digest (Repl) 495, 3715

Cornwall v Henson [1900] 2 Ch 298, 69 LJ Ch 581, 82 LT 735, 49 WR 42, 16 TLR 422, 44 Sol Jo 514, CA,
12 Digest (Repl) 385, 3005
Appeal
Appeal by v M from the judgment of the Supreme Court of Trinidad and Tobago (Trial DivisionMcshine J)
dated 10 October 1958, dismissing the claim for specific performance. The facts appear in the judgment of
Hallinan CJ.
Sir Courtenay Hannays Q C and Agimudie (instructed by T M Kelshall & Son) for the appellant
Wooding Q C and Hamel Wells (instructed by Fitzwilliam, Stone & Alcazar) for the respondent
HALLINAN CJ. The plaintiff-appellant bought the land in dispute from the defendant-respondent in
December 1951, for $3,250, free from encumbrances, which at the time consisted of a mortgage for $1,000.
The contract was oral but when the plaintiff made the first payment of $1,250 on 7 January 1952, the receipt
then given (antedated to 3 December 1951) stated that the balance of $2,000 was to be paid on possession
of the land and building early in January 1952. In fact, the plaintiff has been in possession of the land ever
since, except for a strip which the defendant has since June 1952, with the permission of the plaintiff,
occupied for the purpose of running a gasoline station. The plaintiff has spent $2,000 in repairs to the
building on the land he purchased.
Between April and June 1952, the plaintiff paid a further $1,500. This left only $500 of the purchase
money outstanding. The plaintiffs case is that this $500 was paid, first by delivering to the defendant lumber
to the value of $220, and secondly, by a cash payment of $280 in June of that year. The defendants case is
that the lumber was received in exchange for some iron rails delivered to the plaintiff and that he never
received the $280 in cash. The trial judge, in deciding the issue as to the $220, found that he was unable to
hold that the sum of $220 was credited by the defendant towards the purchase price of the land; and as
regards the sum of $280 he held that the plaintiff had failed to discharge the duty cast upon him of
satisfying the court of the probability of his having made this payment.
The parties had agreed to run a gasoline station as a joint venture but each taccused the other of failure
to carry out the agreement. The defendant failed to give the plaintiff his share of the profit, but the defendant
complained that the plaintiff had failed to furnish $1,200 towards the venture as promised. In consequence
the defendant was financially embarrassed and proceeded to charge

404
the land he had sold to the plaintiff with a further mortgage of $1,000. The learned trial judge, because
of the affair of the gasoline station, reached a conclusion which I think was erroneous and which makes it
difficult to sustain his judgment in this case. He held that, since the plaintiff was not in possession of the
strip occupied by the gasoline station, the parties in fact varied the original contract amounting to a
rescission and entered into a new agreement. He refused the plaintiffs claim for specific performance and
ordered that, upon the defendants refunding the purchase price actually received ($2,750) together with the
$2,000 spent by the plaintiff in repairs to the house on the land, the plaintiff should deliver up possession of
the land to the defendant.
Although counsel for the defendant-respondent seeks to uphold the trial judges order, he concedes that
the judge erred in basing himself on a new agreement between the parties. I agree that the affair of the
gasoline station may have caused delay and confusion in completing the contract for the sale of the land
and have caused the defendant to borrow a further $1,000 on mortgage, but there is nothing in the evidence
concerning the gasoline station from which one might conclude that the parties had rescinded their
agreement as to the sale of the land. On the contrary, the fact that the defendant occupied the strip of land
for the gasoline station by leave and licence of the plaintiff indicates that the parties recognised the
agreement for sale as still subsisting. Counsel for the defendant, however, has sought to uphold the trial
judges order on the following grounds: the plaintiff, by his refusal to pay the balance of $500, has committed
a breach of the contract so that the court cannot give the plaintiff specific performance. Since equity may
not interpose to assist the plaintiff, the rights of the parties are determined according to law and the
defendant is, therefore, entitled to resume possession of the land. This argument skirts the vital question as
to what has become of the contract. Has it been discharged so that the legal right of the defendant revives
freed from the equitable title of a purchaser who has not as yet obtained a conveyance, or is the breach not
so fundamental as to discharge the contract and the defendants remedy should therefore lie in damages?
It was strenuously argued for the plaintiff that there had been no breach of contract but I do not think
that can be maintained. At the trial the plaintiff failed to prove that he had paid all the purchase price and the
trial judge found that $500 was still due. This failure was undoubtedly a breach of the contract. The crucial
question in this case is whether this breach has discharged the contract. In Cheshire And Fifoot On
Contract (4th Edn), at p 485, it is stated:

A breach of contract is a cause of discharge only if its effect is to render it purposeless for the
innocent party to proceed further with performance. Further performance is rendered purposeless if
one party either shows an intention no longer to be bound by the contract or breaks some stipulation
so essential to the continuance of the contractual tie that the very foundation of the contract is
destroyed.
The learned authors continue (ibid, at p 486).
Repudiation of a contract is a serious matter, not to be lightly found or inferred, and the question
whether the inference is justified is one of fact dependent upon the nature of the default and the
circumstances in which it was made.
I do not think that an intention by the plaintiff to repudiate the contract can be inferred from the breach of
contract in this case. It was not established that the plaintiff was by false evidence seeking to escape in part
from payment of the purchase price. Nor is it probable that one who has paid $2,750 of the

405
purchase price and expended $2,000 on the repairs to a building on the land he has purchased should wish
to repudiate the contract.
If there is no intention expressed or implied to repudiate the contract, it is still discharged if the breach is
so fundamental as to destroy the foundation of the contract. This depends on the construction of the
contract and the circumstances of the case. The authority for this statement of the law is to be found in the
judgments of Lord Selborne LC, and Lord Blackburn in Mersey Steel & Iron Co v Naylor, Benzon & Co
((1884), 9 App Cas 434, 53 LJQB 497, 51 LT 637, 32 WR 989, HL, affg (1882), 9 QBD 648, CA, 12 Digest
(Repl) 378, 2966). In that case, Lord Blackburn (9 App Cas at p 444) said:
I repeatedly asked Mr Cohen whether or not he could find any authority which justified him in
saying that every breach of a contract, or even a breach which involved in it the non-payment of
money which there was an obligation to pay, must be considered to go to the root of the contract, and
he produced no such authority.
In Cheshire And Fifoot (4th Edn), at pp 487-488, it is stated, it may be said in general that any breach
which prevents substantial performance is a cause of discharge, and instances the case of Ellen v Topp
((1851), 6 Exch 424, 20 LJ Ex 241, 17 LTOS 52, 15 Jur 451 155 ER 609, 12 Digest (Repl) 473, 3530). A
youth was apprenticed to learn the trade of a master who was an auctioneer, appraiser and corn factor. The
master ceased to practise as a corn factor and by so doing had wilfully made it impossible for the real object
of the contract to be attained. In the present case, there has already been substantial performance of the
contract and the defendant can enforce the remainder by this court awarding him damages covering the
unpaid purchase price with interest. In Carter v Scargill ((1875), LR 10 QB 564, 32 LT 694, 12 Digest (Repl)
495, 3715), the purchase price of a business was dependent on proof from the vendors books that the
business realised a clear profit of 7 per week. After four years the vendor sued for an unpaid balance and
the purchaser resisted as the profit of 7 had not been proved. It was held that even assuming the
stipulation as to profit was a condition precedent yet the purchaser having had a substantial part of the
consideration could not set up the non-performance as a defence.
The facts of the case of Cornwall v Henson ([1900] 2 Ch 298, 69 LJ Ch 581, 82 LT 735, 49 WR 42, 16
TLR 422, 44 Sol Jo 514, CA, 12 Digest (Repl) 385, 3005) are in some respects similar to the present case.
Some five acres of land were sold in 1892 for 150 payable by instalment and the purchaser went into
possession under the contract. The purchase price was paid except the last instalment due in September
1895 which was never paid. The purchaser abandoned the land in 1896 and the vendor resumed
possession and attempted to sell the land as he was entitled to do under the contract. In 1898 the
purchaser announced that he was prepared to pay the last instalment and after some correspondence he
took action claiming specific performance. It was held on appeal that he had not repudiated the contract and
although he was not entitled to specific performance because of his long delay in paying the last instalment,
he was awarded damages of 125. In the present case I am clearly of opinion that the non-payment of the
balance of the purchase money has not discharged the contract.
At the hearing of this appeal, the defence of laches was not relied upon in resisting specific
performance. The purchaser has been in possession of the land since January 1952, has spent $2,000 on
repairs, and the vendor has since 1952 been in receipt of 85 per cent of the purchase price, has not paid off
the encumbrances and actually doubled the amount of the mortgage in October 1953. There is nothing in
the findings of the trial court to suggest that there was mala fides on the part of the plaintiff in alleging that he
had paid in full for the land.

I consider that the judgment of the court below should be set aside and an order made that the
defendant, upon payment to him by the plaintiff of the sum of $500 together with interest thereon at 6 per
cent per annum from 15 January 1952, should execute free from encumbrances a proper conveyance

406
of the land in dispute to the plaintiff. The defendant is entitled to his costs in the court below and the
plaintiff to his costs upon the appeal.
I should like to make it clear that this judgment does not purport to determine the rights or obligations of
the parties concerning the occupation of a strip of the land in dispute for a gasoline station or arising out of
any partnership agreement between them for carrying on that station.
WYLIE J. I agree.
LEWIS J. I agree.
Appeal allowed.

(1959) 1 WIR 407

Sylvestre v Cyrus
FEDERAL SUPREME COURT CIVIL APPELLATE JURISDICTION
HALLINAN C J, WYLIE AND LEWIS JJ
9, 12, 16 OCTOBER 1959

Landlord and tenant Effect of letting a party into exclusive possession Prima facie inference is that of
tenancy To what extent does intention affect the relationship so created.
In consideration of the payment of a premium of $150 and of an agreement to pay rent at $12 per month in
September 1956, CS was let into exclusive possession of a house by MC who was the tenant of that house.
MC moved out of the house to let CS into possession and she took her telephone with her and she also had
the electric meter removed.
On 1 February 1958, MC re-entered the house and occupied a portion of it. This action on her part caused
CS to bring a suit against her in which CS claimed damages for trespass and an injunction restraining
further trespass. MC counter-claimed for mesne profits on the ground that CS, was her licensee and
continued in possession after the licence had been terminated.
Held: that in the absence of special circumstances or conduct which would negative the prima facie
inference of an intention to create a tenancy which would otherwise be drawn, the exclusive possession by
CS was sufficient to establish a tenancy.
Appeal allowed.
Cases referred to
Errington v Errington & Woods [1952] 1 All ER 149, [1952] 1 KB 290, [1952] 1 TLR 231, 96, Sol Jo 119 CA,
3rd Digest Supp
Cobb v Lane [1952] 1 All ER 1199, [1952] 1 TLR 1037, 96 Sol Jo 295, CA, 3rd Digest Supp
Facchini v Bryson [1952] 1 TLR 1386, 96 Sol Jo 395, CA, 3rd Digest Supp
Addiscombe Garden Estates, Ltd v Crabbe [1957] 3 All ER 563, [1958] 1 QB 513, 101 Sol Jo 959, 170
Estates Gazette 705 CA, 3rd Digest Supp
Marcroft Wagons, Ltd v Smith [1951] 2 All ER 271, [1951] 2 KB 496, 95 Sol Jo 501, CA, 2nd Digest Supp
Pike v Eyre (1829), 9 B & C 909, 4 Man & Ry KB 661, 8 LJOSKB 69, 109 ER 338, 31 Digest (Repl) 586,
7060

407
Curtis v Wheeler (1830), 4 C & P 196, Mood & M 493, NP, 30 Digest (Repl) 510, 1498
Oxley v James (1844), 13 M & W 209, 13 LJ Ex 358, 3 LTOS 222, 153 ER 87, 30 Digest (Repl) 491, 1351
Appeal

Appeal by CS from the judgment of the Supreme Court of Trinidad and Tobago (Trial DivisionBlagden J)
dismissing the claim and awarding mesne profits on the counter-claim. The facts appear in the judgment of
Lewis, J.
Bruyning (instructed by C A Archibald Roach) for the appellant
(instructed by T Malcolm Milne & Co) The respondent in person
LEWIS J. In July 1956, the plaintiff was in need of a house to rent as the house in which she was then living
was to be broken down and she had been required to leave. As a result of a conversation between the
parties the defendant offered her an apartment in a house at No 35 Sackville Street, Port of Spain, of which
she, the defendant, was herself a monthly tenant paying a rental of $12 per month and from which she was
shortly to move. The plaintiff accepted her offer, moved into the house with her mother and other members
of her family about the middle of September 1956, and has remained there ever since. The defendant went
to live with one Nicholas Alves first at Basilon Street, and later at Mount Lambert, in houses which she and
Alves had purchased in their joint names. On 1 February 1958, the defendant re-entered the Sackville
Street apartment, taking her furniture with her. The plaintiff obtained an injunction to restrain her from
remaining on the premises, and the present action was brought for damages for trespass and an injunction
to restrain the defendant from further trespasses.
The plaintiff alleges that she is a monthly tenant of the defendant and says that she paid a premium of
$150 for possession and has paid rent at the rate of $12 per month from the date of her entry, and that she
has always had exclusive possession of the apartment. She says that the defendant asked her not to let
anyone know of the transaction and refused to give her receipts for the rent. The defendant denies that the
plaintiff is her tenant and says that as the plaintiff was in difficulty at the time but expected to obtain a house
shortly, she permitted her to occupy the apartment free of rent until such time as she could find a house; that
she never received any premium; and that she reserved and in fact exercised the right to occupy a part of
the premises from time to time, and left certain items of furniture in a back room of the house for that
purpose. She counter-claimed for possession and for mesne profits.
The plaintiffs story as to the terms in which she occupied the house was supported by Anthony Inniss,
the agent of the house previously occupied by her, who testified that the amount of the premium was in fact
furnished by her landlord and paid over by him, Inniss, to the defendant in the presence of the plaintiff, and
that the defendant then told the plaintiff: All you have to pay me now is $12 per month. You can call at my
new home at Basilon Street for the keys; and by her friend, Dolly Edwards, who said that she was present
at 35 Sackville Street on 2 January 1958, when the defendant called for the rent and saw and heard the
plaintiff pay her $12 as rent and ask for a receipt. On the issue of exclusive possession one Agatha Alexis
gave evidence that she scrubbed the apartment on the same day that the plaintiff occupied it and that it was
then quite empty.
The defendants witness, Alves, said that he heard the defendant tell the plaintiff: All right, I will allow
you to stay here and you can have the use of the entire place, as I will be away doing some work and I will
be coming home time and again. He heard no conversation about rent. He added that the defendant
moved out only part of her furniture and periodically visited the Sackville Street apartment for a few days at a
time.

408
There was therefore a sharp conflict of evidence between the parties as to the terms on which the
plaintiff went into occupation.
There are, however, certain undisputed facts. The defendant took her telephone with her to Basilon
Street and had the electric meter removed. Shortly after the defendant had handed over the apartment to
the plaintiff, her landlord gave her notice to quit. She ignored the notice, and on 10 July 1957, ejectment
proceedings were started against her on the ground that she had parted with possession. The case was
heard in August and dismissed. On 22 July while the case was pending, the defendant herself served the
plaintiff with a notice to quit and deliver up possession of portion of premises known as No 35 Sackville
Street, which you now occupy as a monthly tenant. This notice was prepared on a printed form by the
agent, Celestin, and signed by the defendant. Subsequently the defendant tried unsuccessfully to recover
the notice, and the plaintiff says that she told her she would continue to occupy the house. Certainly, the
plaintiff did not leave the house, and on 9 September 1957, in an effort to establish that she was paying rent,
she wrote to the defendant, enclosing money orders for $24, being two months rent, for the months of July
and August 1957, with respect to the apartment situate at No 35 Sackville Street, Port of Spain, which I now
hold of you as a monthly tenant. The defendant returned the money orders, and denied the plaintiffs
allegation that she subsequently received the money from her in cash. On 12 September 1957, the
defendants landlord distrained the plaintiffs furniture in the apartment for $12, being one months rent due
for August. The plaintiff paid $13.20 for the release of the furniture. As to this, the defendant alleges that
she repaid the plaintiff the $13.20 but this the plaintiff denies, and the trial judge made no finding about it.

The trial judge held that the relationship between the plaintiff and defendant was that of licensor and
licensee. In his judgment, after reviewing the evidence, much of which he said he viewed with suspicion and
considered deliberately perjured, he continued:
That completes the history of the case and it brings me back to the basic issue which is, was the
plaintiff a tenant or a licensee of the defendant? As I have already indicated, the answer to this
question largely depends on the intentions of the parties and my findings in regard to this are as
follows:
The defendant intended the plaintiff to occupy the apartment at 35 Sackville Street of which she
(the defendant) was monthly tenant for an unspecified period while the plaintiff was negotiating for
more permanent quarters elsewhere. The defendant never intended to assign her tenancy nor did she
intend to carve a sub-tenancy out of it. What she intended was a mere licence to occupy the whole
premises for an unspecified time; but I am afraid I am not satisfied that this was a gratuitous
concession on her part or that she ever intended it to be so. The plaintiffs intentions on the other
hand, I am satisfied, were to enter into occupation of the apartment on the most favourable terms she
could acquire for herself. To those intentions she had remained faithful even up to the present day.
In these circumstances I cannot see that any form of tenancy was created by the arrangement
which the defendant and the plaintiff concluded between themselves. I am satisfied that that was not
the intention of the parties at the time of the inception of that arrangement.
He further held that the licence had been revoked by the defendants entry on 1 February 1958, and that this
entry, even if wrongful, did not amount to a trespass. He accordingly dismissed the plaintiffs claim and gave
judgment for the defendant for possession and for $10 mesne profits and costs.
Against this decision the plaintiff has appealed.
The trial judge appears to have directed himself correctly on the law with

409
respect to the principles to be applied in determining the question whether a lease or a licence results
from any particular set of circumstances. He based his direction upon the statement in 23 Halsburys Laws
(3rd Edn), p 427, para 1022:
In determining whether an agreement creates between the parties the relationship of landlord and
tenant or merely that of licensor and licensee the decisive consideration is the intention of the
parties.... In the absence of any formal document the intention of the parties must be inferred from the
circumstances and the conduct of the parties.
We have therefore to decide whether there was evidence to support the conclusion reached by the judge. In
his review of the evidence the judge outlined the various issued of fact on which there was conflicting
evidence, but made no specific finding on a number of them. The task of this court would have been
rendered much simpler had the judge stated his findings of specific facts, for in their absence the court is left
to discover for itself which version of the facts he must have accepted in support of the more general
findings and the inferences set out in the passage quoted above.
The respondent was not represented by counsel, and the court did not have the advantage of hearing
legal argument on her behalf.
The question whether an intention to create a tenancy or a licence should be inferred from any
particular set of circumstances has been considered in a number of recent cases, more especially in
connection with the Rent Acts. A summary of the manner in which the law has developed is to be found in
the judgment of Denning LJ, in Errington v Errington & Woods ([1952] 1 All ER 149, [1952] 1 KB 290, [1952]
1 TLR 231, 96, Sol Jo 119 CA, 3rd Digest Supp) ([1952] 1 All ER at p 154). After pointing out that in
distinguishing between a tenancy and a licence a crucial test has sometimes been supposed to be whether
the occupier has exclusive possession or not but that this test is by no means decisive, the learned Lord
Justice said (ibid, at p 155):
The result of all these cases is that, although a person who is let into exclusive possession is,
prima facie, to be considered to be a tenant, nevertheless he will not be held to be so if the
circumstances negative any intention to create a tenancy. Words alone may not suffice. Parties
cannot turn a tenancy into a licence merely by calling it one. But if the circumstances and the conduct
of the parties show that all that was intended was that the occupier should be granted a personal
privilege with no interest in the land, he will be held only to be a licensee.
The decision in Cobb v Lane ([1952] 1 All ER 1199, [1952] 1 TLR 1037, 96 Sol Jo 295, CA, 3rd Digest
Supp) is to the same effect.

An examination of the cases in which an occupier in exclusive possession of premises has been held to
be a licensee, and not a tenant, shows that in each case there were special circumstances or conduct which
negatived a prima facie inference of intention to create a tenancy which would otherwise be drawn. Such
were a charitable desire to assist evacuees, a humane consideration for an occupier allowed to hold over
temporarily, a deserted wife continuing in occupation, a family arrangement, an agreement that the landlord
should be entitled to re-enter his furnished flat at any time, or the fact that a different construction would
grant a statutory right of irremovability under the Rent Acts which the parties clearly did not intend should
result. Save in exceptional cases of this kind, the law remains that the fact of exclusive possession, if not
decisive against the view that there is a mere licence, as distinct from a tenancy, is at all events a
consideration of the first importance. Denning LJs statement, referred to above, that the test of exclusive
possession is by no means decisive, should be read in the light of his subsequent observations in Facchini
v Bryson ([1952] 1 TLR 1386, 96 Sol Jo 395, CA, 3rd Digest Supp) ([1952] 1 TLR at p 1389). See also
Addiscombe Garden Estates, Ltd v Crabbe ([1957] 3 All ER 563, [1958] 1 QB 513, 101 Sol Jo 959, 170
Estates Gazette 705 CA, 3rd Digest Supp) ([1957] 3 All ER at p 571), per Jenkins LJ.

410
Another important consideration in determining the true intention of the parties in a case such as this is
the length of time for which the occupant has been allowed to remain in possession. In Marcroft Wagons,
Ltd v Smith ([1951] 2 All ER 271, [1951] 2 KB 496, 95 Sol Jo 501, CA, 2nd Digest Supp), a case which
concerned the occupation by the daughter of a deceased statutory tenant, the daughter had remained in
possession, paying rent, for about six months. The Court of Appeal held that in the circumstances no
tenancy had been created between the plaintiffs (the owners) and the daughter. But Sir Raymond Overshot
MR, said ([1951] 2 All AR at ppp 274):
The most troublesome matter, speaking for myself, has been the length of time that elapsed
between March and September 1950, before the plaintiffs took any further step. . . . It seems to me
that it would be quite shocking if, because a landlord allowed a condition of affairs to remain
undisturbed for some short period of time, the law would have to infer therefrom that a relationship had
arisen which made it impossible thereafter for the landlord to recover possession of the property when,
admittedly, by taking proper measures from the start he could have got possession.
And (ibid, at ppp 275):
If three, four, five or six weeks had elapsed, and then the plaintiffs had said, Well, now, we have
given you a reasonable time: we are afraid we must ask you to go, it seems to me that the defendants
case would have been almost inarguable. But, as I have already said, the plaintiffs allowed the
occupation to continue for six months, and that length of time, in view of the evidence given, would, I
think, have been an important matter to any judge considering what, at the end of that period, was the
proper inference to be drawn. In all the circumstances, however, I cannot think that six months is
necessarily so long a period that we must treat as untenable the judges conclusion that there was no
change of intention on the part of either party between March and September 1950in other words,
that at the end of that six months period, as at the beginning, the real inference was that, the plaintiffs
representative and the defendant having met, it was agreed between them that the status quo should
be allowed for the present to continue.
And Roxburgh J, said (ibid, at p 278):
But if, on the other hand, the plaintiffs intended to let the defendant remain in occupation until they
actually required the premises for their own employee, then I should have thought that a tenancy
would result. However, it must always be a question of fact and degree.
In the same case Denning L J, while agreeing that a person in exclusive possession of premises holding
over and paying rent may nevertheless be a licensee and not a tenant, said (ibid, at p 277):
Nothing that I have said must be taken to apply to new occupants let in by a landlord. I confine
myself to a person who is in the house and who has some colourable ground for saying that he or she
is protected by the Rent Acts. In such cases I think that the landlord can give such a person
permission to occupy and can receive a weekly payment from him without necessarily creating a
tenancy; but the longer that goes on, the more likely it is that the court will infer that a new tenancy in
fact has been created.
Bearing in mind the foregoing principles and considerations, I ask myself whether the trial judge was
right in holding, as he did, that the proper inference to be drawn in this case was that of a licence and not a

tenancy. He has found, in effect, that the defendant put the plaintiff into exclusive possession of the
apartment intending her to continue in occupation for an unspecified time until she found other premises.
His finding that this was not a gratuitous concession

411
is wide enough to cover the payment both of a premium and of a monthly rental and, though he does
not in terms say so, there are passages in his judgment which indicate that he accepted the plaintiffs
statement that she was paying a monthly rental. In my view, any other finding would have been entirely
against the weight of the evidence. The defendant removed her furniture, took the telephone to her new
residence, had the electric meter removed, and allowed the plaintiff to remain in exclusive possession for
over sixteen months, while she herself continued to pay the monthly rental to her landlord. It is
inconceivable, in the absence of any special circumstances, that she would have done this on any other
basis than the payment of a rental.
The notice to quit which the defendant gave the plaintiff in July 1957, was in itself strong evidence that
she considered the plaintiff to be her monthly tenant. The trial judge recognised the weight of this evidence,
but discounted it. He commented that its force has been somewhat dismissed by her failure to reveal her
possession of it until the trial, and that her cause might have been better served if she had relied on it in
her pleadings as constituting an estoppel. Later, he said: I have no difficulty in holding that if the plaintiffs
initial occupation of these premises was by licence, that licence would not be converted into tenancy simply
by the service of a notice to quit on the licensee couched in terms appropriate to a tenancy.
It is clear that the trial judge fell into error here. The importance of the notice to quit lay in the fact, not
that it purported to convert what was initially a licence into a lease, but that it showed what the intention of
the parties as to their legal relationship was at the time when the notice was served. It is this same error
which caused the trial judge to miss the significance of the plaintiffs letter of 9 September 1957, enclosing
$24 rent for the apartment which I now hold of you as a monthly tenant. If, in September 1956, the
defendant had intended the plaintiff to occupy temporarily and merely as a licensee, certainly by July 1957,
ten months later, the position had changed, and the occupation had, in the eyes of both parties, ripened into
a tenancy.
I am unable to find in the evidence any special circumstances or conduct of the parties which negative
the inference normally to be drawn where a person having a possessory interest in land puts another person
into exclusive possession of that land, namely, an intention to create a tenancy. The facts as found by the
trial judge all point to that inference as being the proper one. It is true that in July to September 1956, when
the plaintiff was negotiating with the defendant, she was in urgent need of a house, but that is not an
unusual situation, and the fact that the plaintiff demanded and received a premium of $150 suggests that
this was a business transaction rather than a personal privilege motivated by charitable or humane
considerations. It is also clear that the plaintiff wished to be in a position to recover possession of the
apartment should she at any time need to do so, but this she could have done by giving the proper notice to
the defendant, who would not, in the circumstances, have been able to avail herself of the protection of the
Rent Restriction Ordinance [T]. I have come to the conclusion, therefore, that the trial judge erred in holding
that the relationship between the parties was that of licensor and licensee. In my judgment, this was a
simple case of sub-tenancy at a monthly rental.
The question was raised at the trial, and again at the hearing of this appeal, whether a demise by a
tenant from month to month to another also to hold from month to month is a sub-lease or an assignment. It
is clear from the cases of Pike v Eyre ((1829), 9 B & C 909, 4 Man & Ry KB 661, 8 LJOSKB 69, 109 ER 338,
31 Digest (Repl) 586, 7060), Curtis v Wheeler ((1830), 4 C & P 196, Mood & M 493, NP, 30 Digest (Repl)
510, 1498), and Oxley v James ((1844), 13 M & W 209, 13 LJ Ex 358, 3 LTOS 222, 153 ER 87, 30 Digest
(Repl) 491, 1351) that such a demise is not an assignment, but a sub-lease, and that there is a reversion on
which covenant may be maintained and which entitles the intermediate landlord to distrain.
There can be no doubt that the defendant in this case did not intend to assign her tenancy. She tried to
keep the transaction secret, declined to give receipts,

412
and successfully resisted the ejectment proceedings brought against her by her landlord. She did,
however, intend to sub-let the apartment to the plaintiff, and her entry, without due notice, on 1 February
1958, was a violation of the plaintiffs rights as sub-tenant, for which she is answerable in damages.
I would allow the appeal. The order of the court below should be set aside and judgment entered for
the appellant for $50 damages and for an injunction to restrain the respondent from continuing or committing
further acts of trespass. The counter-claim should be dismissed. The appellant should have her costs in
this court and in the court below.
HALLINAN CJ. I agree.
WYLIE J. I also agree.

Appeal allowed.

(1959) 1 WIR 413

James Clinton Chisholm v James Hall

PRIVY COUNCIL
LORD RADCLIFFE, LORD JENKINS AND THE RT HON LMT DE SILVA
27, 28 APRIL, 1, 6 MAY, 8 JULY 1959

Limitation of actions Boundary dispute Adjacent lots Registered titles Limitation of Actions Law, Cap
395 [J].
New certificate of title issued in place of a lost certificate is merely a substitute The calculation of the
period of limitation does not commence from the date of the new certificate of title Registration of Titles
Law, Cap 353 of the Revised Laws (1938) [J].
Preservation of rights acquired by limitation notwithstanding that they are not noted in the Register
Principle of stare decisis not applicable.
The appellant and the respondent were the registered proprietors of adjoining plots of land in Kingston,
Jamaica. The appellant was registered as proprietor on 16 April 1928. The respondent was registered as
proprietor on 30 October 1941, having purchased from the Administrator General for Jamaica, the legal
personal representative of the former owner.
The Administrator General had been registered on transmission and a new certificate of title issued in his
name on 7 May 1919. This certificate of title became lost and another new certificate of title dated 16
October 1941, was issued to the Administrator General in place of the lost certificate of title, which was
cancelled.
The dispute concerned the proper position of the boundary between the two lots. At the time of action
brought there was and had for many years been in existence a physical boundary dividing the lots. The
appellants contention was that the physical boundary existing upon the land was rightly placed and was the
true dividing line. The respondents contention was that the physical boundary encroached a matter of
seven feet on his lot along his entire northern boundary. The respondents action was for a declaration that
the disputed strip of land was comprised in his certificate of title, possession and mesne profits, and the
appellant counter-claimed for a declaration that the boundaries as now existing were the true boundaries
and for rectification of the Register.
Held: (1) (affirming the judgment of the Court of Appeal of Jamaica) that the

413
disputed strip formed part of the land comprised in the respondents certificate of title.
(2) (reversing the judgment of the Court of Appeal of Jamaica) (i) that the respondents registered title had
by the time of action brought been ousted in favour of the appellant quoad the disputed strip of land by the
operation of s 3 of the Limitation of Actions Law (Cap 395 of the 1938 Edition of the Revised Laws Of
Jamaica, the appellant having shown over twelve years continuous possession of the disputed strip from
the date of his purchase on 12 April 1928, down to the commencement of these proceedings on 31 January
1951, and by virtue of s 46 of the same Law having shown more than seven years of acquiescence in the
position of the physical boundary.
(ii) Sections 67 and 69 of the Registration of Titles Law, Cap 353 [J], must be read together and so far as
possible reconciled with each other, and the combined effect thereof is that it places upon a purchaser of
registered land the onus of going behind the Register and satisfying himself that no adverse interest by
limitation has been acquired, in every case in which more than twelve years have elapsed since the title was
first registered.

(iii) whenever a duplicate certificate of title or special certificate of title is lost or destroyed and a new
certificate of title registered in place of the former certificate, such new certificate is merely a substitute for
the lost or destroyed certificate and merely has the effect of placing the proprietor in the same position as if
the former certificate had not been lost or destroyed, and does not bring about any alteration of rights.
Digestion v Railings (1) overruled. Targeting v Waxen (2) considered.
Cases referred to
Goodison v Williams (1931), Clerks Reports (Jamaica) 349
Dartadeen v Watson (1937), 3 JLR 87
Appeal
Appeal from the judgment of the Court *of Appeal of Jamaica (30 July 1954) reversing a judgment of
SIMPER, J, in the High Court of Jamaica (25 July 1953).
Join L Earned Q C and John Monckton (instructed by G F Hudson Matthews & Co agents for Fraser &
Calame) for the appellant
DN Pritt QC and David S Hunter (instructed by A L Bryden & Williams) for the respondent
LORD JENKINS delivered the judgment of the court: The parties to this litigation (namely the plaintiff (now
respondent) Mr James Hall, and the defendant (now appellant) Mr James Clinton Chisholm) own contiguous
plots of land fronting the west side of King Street, Kingston, Jamaica, which runs approximately north and
south.
The defendants plot is known as No 105 King Street, and the contiguous plot belonging to the plaintiff
and known as No 103 King Street lies immediately to the south of the defendants plot. The plaintiff also
owns the plot known as No 101 King Street which lies immediately to the south of No 103, these two plots
having for many years been held together.
The dispute concerns the proper position of the boundary between No 105 to the north and No 103 to
the south. At the time of action brought there was and had for many years been in existence a physical
boundary running from west to east and dividing the combined area of Nos 105 and 103 into two parts. The
defendants contention was and is that the physical boundary existing upon the land was rightly placed, and
showed the true dividing line between Nos 103 and 105. The plaintiffs contention was and is that the
physical boundary was placed a matter of seven feet too far south and that there had to this extent been an
unwarranted encroachment on No 103. The area in dispute is thus a strip of land immediately north of the
physical boundary, and some seven feet in width from north to south, and coextensive with the length of the
two properties from east to west.

414
The plaintiff and the defendant are the registered proprietors of their respective properties under the
Registration of Titles Law, Cap 353 [J]. The first certificate of title in respect of Nos 103 and 101 was
granted to Mr Morris Aria Bonitto as the proprietor thereof in fee simple on 21 January 1901. The first
certificate of title in respect of No 105 was granted to Mrs Eugenia Blanche Bonitto (the second wife and
then the widow of Mr Morris Bonitto) as the proprietor thereof in fee simple on 12 March 1928. The
defendant bought No 105 from Mrs Eugenia Bonitto under a transfer dated 12 April 1928, and was duly
registered as proprietor thereof on 16 April 1928. The plaintiff bought Nos 103 and 101 under a transfer
dated 24 October 1941, from the Administrator General for Jamaica as the legal personal representative of
Mr Morris Bonitto, who had died on 20 November 1918; and the plaintiff was duly registered as the
proprietor of these two plots on 30 October 1941.
For reasons which will hereafter appear, it is important to note:
(i) that the Administrator General as legal personal representative of Mr Morris Bonitto had applied
for and obtained the registration of himself as proprietor of Nos 101 and 103 by transmission under s
124 of the Registration of Titles Law [J], and had no that occasion procured the issue to himself of a
new certificate of title in his own name dated 7 May 1919, the certificate originally issued in the name
of Mr Morris Bonitto on 21 January 1901, being cancelled accordingly; and
(ii) that the Administrator General had subsequently lost the certificate issued to him on 7 May
1919, and had under s 81 of the Law applied for and obtained the issue to himself of a new certificate
dated 16 October 1941, in place of the lost certificate, which was accordingly cancelled.
On 18 November 1942, the plaintiff commenced an action against the defendant in the Supreme Court
of Jamaica for a declaration that the disputed strip of land was comprised in his certificate of title,
possession and mesne profits. That action was however wholly discontinued by Order dated 21 June 1944.

On 31 January 1951, the plaintiff commenced a further action against the defendant in the Supreme
Court (being the action out of which the present appeal arises) for similar relief, the defendant counterclaiming for a declaration that the north and south boundaries of Nos 101-103 and 105 as then existing were
the true boundaries between the said properties and for rectification of the Register. This action was tried
before Semper J, who by his judgment dated 25 July 1953, dismissed the plaintiffs claim, and made a
declaration in the terms claimed by the defendant. The plaintiff appealed to the Court of Appeal of the
Supreme Court Carberry C J., Macgregor and Rennie JJ), who by their judgment dated 30 July 1954,
allowed the plaintiffs appeal, set aside the judgment of Semper J, and entered judgment for the plaintiff for
the relief sought.
The defendant now appeals from that judgment.
The questions in the appeal are in substance these:
(i) whether the disputed strip formed part of the land comprised in Nos 103 and 101, in respect of
which the plaintiffs predecessor in title, Mr Morris Bonitto, was registered as proprietor on 21 January
1901, or formed part of the land comprised in No 105, in respect of which the defendants predecessor
in title, Mrs, Eugenia Bonitto, was registered as proprietor on 12 March 1928; and
(ii) in the event of that question being answered in favour of the plaintiff, whether his registered title
had by the time of action brought been ousted in favour of the defendant quoad the disputed strip by
the operation of the Limitation of Actions Law (Cap 395 of the Revised laws of jamaca.
The trial judge decided the first of these two questions in the defendants favour and accordingly found it
unnecessary to decide the second.

415
The Court of Appeal decided both questions in favour of the plaintiff, holding that so far as they were
concerned the second question was concluded against the defendant by the majority decision of the same
court in the case of Goodison v Williams ((1931), Clerks Reports (Jamaica) 349), to which further reference
will in due course be made.
Notwithstanding the full and careful argument presented on the defendants behalf, their Lordships find
themselves in agreement with the conclusion in favour of the plaintiff reached by the Court of Appeal on the
first question, and substantially accept the reasons for that conclusion given in the judgment of the court
delivered by Macgregor J, which will gain nothing by repetition. Moreover, the first question is deprived of
practical significance by the view their Lordships have formed on the second.
In these circumstances their Lordships feel that no useful purpose would be served by debating the first
question any further, and they refrain from doing so.
As to the question of limitation, the relevant statute of limitations is, as already observed, the Limitation
of Actions Law (Cap 395 of the Revised laws of jamaica).
Section 3 of that Law imposes a limitation period of twelve years on actions for the recovery of land, and
is in these terms:
No person shall make an entry or distress, or bring an action or suit to recover any land or rent, but
within twelve years next after the time at which the right to make such entry or distress, or to bring
such action or suit, shall have first accrued to some person through whom he claims, or, if such right
shall have not accrued to any person through whom he claims, then within twelve years next after the
time at which the right to make such entry or distress, or to bring such action or suit, shall have first
accrued to the person making or bringing the same.
Section 31 is in these terms:
At the determination of the period limited by this Part of this Law to any person for making an entry
or distress, or bringing any action or suit, the right and title of such person to the land or rent, for the
recovery whereof such entry, distress, action or suit respectively might have been made or brought
within such period, shall be extinguished.
Section 46 contains special provisions as to boundaries, and so far as material for the present purpose
is in these terms:
In all cases where the lands of several proprietors bind or have bound upon each other, and a
reputed boundary hath been or shall be acquiesced in and submitted to by the several proprietors
owning such lands, or the persons under whom such proprietors claim, for the space of seven years
together, such reputed boundary shall for ever be deemed and adjudged to be the true boundary
between such proprietors; and such reputed boundary shall and may be given in evidence upon the

general issue, in all trials to be had or held concerning lands, or the boundaries of the same, any law,
custom or usage to the contrary in anywise notwithstanding.
Section 46 of Cap 395 was, but s 3 was not, pleaded in the defence, and an objection was taken on the
plaintiffs behalf to reliance being placed by the defendant on s 3, but this objection was not persisted in, and
their Lordships accordingly propose to deal with the question of limitation on the footing that s 3 is available
to the defendant as well as s 46.
It is common ground that if this was a case of common law, as distinct from registered titles, the
defendant would be entitled to succeed under either section.
As regards s 3, the defendant can show over twelve years continuous possession of the disputed strip
from the date of his purchase of No 105 on 12 April 1928, down to the date of commencement of the present
proceedings on 31 January 1951.

416
As regards s 46, the defendant can show more than seven years of acquiescence in the position of the
physical boundary from the date of his purchase on 12 April 1928, down to the commencement of the
plaintiffs first, and abortive, action on 18 November 1942. Moreover the defendant had completed more
than twelve years possession from 12 April 1928, before the Administrator General procured the issue to
himself on 16 October 1941, of a new certificate of title to Nos 101-103 in place of the lost certificate which
had been issued to him on 7 May 1919; and there had also been more than seven years acquiescence in
the position of the physical boundary from 12 April 1928, by the date of the issue of such new certificate.
The plaintiffs contention is that under the provisions of the Registration of Titles Law, Cap 353 [J], the
issue of the new certificate in place of the lost one on 16 October 1941, had the effect of destroying the
rights which had already accrued to the defendant under the Limitation of Actions Law, Cap 395 [J], so that
the defendant in order to make good his defence of limitation must show twelve years possession under s 3
or seven years acquiescence under s 46 computed from 16 October 1941. This the defendant could not do,
since the present proceedings were commenced on 31 January 1951, which was less than twelve years
from 16 October 1941; and the period of acquiescence computed from the latter date would have been
interrupted before it reached seven years by the commencement of the plaintiffs abortive action on 18
November 1942, and if computed from the date of discontinuance of that action on 21 June 1944, would not
have reached seven years by 31 January 1951, when the present proceedings were started.
The plaintiffs contention on this part of the case demands reference at some length to the provisions of
the Registration of Titles Law [J]. This Law is one of many enactments for the registration of titles in force in
this country and in various parts of the Commonwealth and Empire. But these enactments are by no means
uniform in their terms, and it was agreed in the course of the argument that no useful purpose would be
served by comparing other enactments with the Jamaican Law, or citing cases decided on other enactments
as aids to the construction of the Jamaican Law. Their Lordships therefore approach this question as one
which turns simply and solely upon the true construction of the Jamaican Law itself.
Section 2 of the Law is in these terms:
All laws and practice whatsoever, relating to freehold and other interests in land, so far as is
inconsistent with the provisions of this Law, are hereby repealed, as far as regards their application to
land under the provisions of this Law, or the bringing of land under the operation of this Law.
Section 3 contains a number of definitions and includes the following:
incumbrance shall include all estates, interests, rights, claims and demands, which can or may be
had, made or set up, in, to, upon or in respect of the land adversely and preferentially to the title of the
proprietor;
instrument shall include a conveyance, assignment, transfer, lease, mortgage, charge and also the
creation of an easement.
Section 23 to 25 provide as follows:
23. Land may be brought under the operation of this Law by the Registrar registering the title of
some person thereto as the proprietor thereof in manner hereinafter provided.
24. The title of any person to land brought under the operation of this Law shall be registered
either as an absolute or as a qualified title.
25. A person registered under this Law as proprietor of any land with an absolute title shall be
entitled to hold such land in fee simple, together with

417
all rights, privileges and appurtenances, belonging or appurtenant thereto, subject as follows
(a) to the incumbrances (if any) entered on the certificate of title, and

(b) to such liabilities, rights and interests, as may under the provisions of this Law subsist over land
brought under the operation of this Law without being entered on the certificate of title as
incumbrances, but free from all other estates and interests whatsoever including estates and interests
of His Majesty, his heirs and successors, save only quit rents, property tax or other impost, charged
generally on lands in this Island, that have accrued due since the land was brought under the
operation of this Law.
Section 32 provides (to put it shortly) that when the registration of any title has been provisionally
approved by one of the referees under the Act, notification thereof is to be given by advertisement or
advertisements as therein mentioned and also personally to all persons in possession or charge of the
adjoining lands so as to give them an opportunity of lodging a caveat against the registration of the title in
question. Section 36 provides that if no caveat is lodged within the time limited by the notice the title is to be
registered. Under s 54 land is to be brought under the operation of the Law by the registration by the
Registrar of a certificate in the prescribed form. The certificate is to be made out in duplicate, one copy
being bound up in the register book and the other issued to the proprietor.
Sections 67 and 69 (the critical sections for the purposes of the present case) are in these terms:
67. No certificate of title registered and granted under this law shall be impeached or defeasible by
reason or on account of any informality or irregularity in the application for the same, or in the
proceedings previous to the registration of the certificate; and every certificate of title issued under any
of the provisions herein contained shall be received in all Courts as evidence of the particulars therein
set forth, and of the entry thereof in the Register Book, and shall, subject to the subsequent operation
of any statute of limitations, be conclusive evidence that the person named in such certificate as the
proprietor of or having any estate or interest in, or power to appoint or dispose of the land therein
described is seised or possessed of such estate or interest or has such power.
69. Notwithstanding the existence in any other person of any estate or interest, whether derived
by grant from the Crown or otherwise, which but for this Law might be held to be paramount or to have
priority, the proprietor of land or of any estate or interest in land under the operation of this Law shall,
except in case of fraud, hold the same as the same may be described or identified in the certificate of
title, subject to any qualification that may be specified in the certificate, and to such incumbrances as
may be notified on the folium of the Register Book constituted by his certificate of title, but absolutely
free from all other incumbrances whatsoever, except the estate or interest of a proprietor claiming the
same land under a prior registered certificate of title, and except as regards any portion of land that
may by wrong description of parcels or boundaries be included in the certificate of title or instrument
evidencing the title of such proprietor not being a purchaser for valuable consideration or deriving from
or through such a purchaser:
Provided always that the land which shall be included in any certificate of title or registered
instrument shall be deemed to be subject to the reservations, exceptions, conditions and powers (if
any), contained in the patent thereof, and to any rights acquired over such land since the same was
brought under the operation of this Law under any statute of limitations, and to any public rights of way,
and to any easement acquired by enjoyment or user, or subsisting over or upon or affecting such land,
and to any unpaid rates and assessments,

418
quit-rents or taxes, that have accrued due since the land was brought under the operation of this
Law, and also to the interest of any tenant of the land for a term not exceeding three years,
notwithstanding the same respectively may not be specially notified as incumbrances in such
certificate or instrument.
Section 81 (under which the Administrator General obtained his second new certificate in the present
case) provides by sub-ss (1) and (2) as follows:
81.(1) Whenever a duplicate certificate of title or special certificate of title is lost or destroyed the
registered proprietor of the land or some person claiming through him may apply to the Registrar to
cancel the certificate of title and to register a new certificate in duplicate in the name of the registered
proprietor or his transferee in place of such certificate and duplicate or special certificate. On proof
being furnished to his satisfaction of such loss or destruction, and on such requisitions, if any, which he
may make being complied with, and on the expiration of the notice to be given as hereinafter provided
without sufficient cause having been shown against the application, the Registrar shall cancel the
certificate and register a new certificate in duplicate in the name of the registered proprietor or his

transferee in place of the former certificate and duplicate or special certificate, both of which shall
thereupon be deemed to be cancelled.
(2)Before disposing of the application the Registrar shall give at least fourteen days notice thereof
in at least one newspaper and such other notice, if any, as he may think fit.
Section 84 enables a proprietor to transfer his interest, and provides that:
...Upon the registration of the transfer, the estate and interest of the proprietor as set forth in such
instrument, or which he shall be entitled or able to transfer or dispose of under any power, with all
rights, powers and privileges thereto belonging or appertaining, shall pass to the transferee; and such
transferee shall thereupon become the proprietor thereof, and whilst continuing such shall be subject
to and liable for all and every the same requirements and liabilities to which he would have been
subject and liable if he had been the former proprietor, or the original lessee, mortgagee or annuitant.
Section 87, after providing for cases in which part only of the land comprised in a registered title is
transferred, continues as follows:
. . . but when the whole of the land passes to any person other than as aforesaid, it shall not be
incumbent on the Registrar to make out a new certificate of title in the name of such person, but such
person shall be deemed to be duly registered as proprietor of such land when a memorandum of the
transfer or other legal mode as aforesaid shall have been registered under this law:
provided always that if the transferee desire it, the Registrar shall cancel the certificate of title and
the duplicate, and shall retain such duplicate, and issue a new certificate of title in the name of the
transferee. . . .
Section 124 provides for the registration of persons acquiring registered land by transmission, this being
the provision under which the Administrator General was registered in respect of Nos 101 and 103 in the
present case.
Many other sections of the Law were referred to in the course of the argument, but the question at issue
in the end turns upon the true construction of ss 67 and 69, which contain the only references to limitation to
be found in the Law.
Section 67 provides that
. . . every certificate of title . . . shall be received in all Courts as evidence of the particulars
therein set forth, and of the entry thereof in the Register

419
Book, and shall subject to the subsequent operation of any statute of limitations, be conclusive
evidence that the person named in such certificate as the proprietor of or having any estate or interest
in . . . the land therein described is seised or possessed of such estate or interest . . .
That provision if it stood alone might well lead to the conclusion that subsequent must mean
subsequent to the issue of the certificate in question and that on the principle of expressio unius exclusio
alterius any interest in the land in question acquired by the prior operation of any statute of limitations is
defeated by the issue of a certificate of title under any of the provisions of the Law, the distinction being
between rights so acquired before the issue of the certificate which are extinguished and rights so acquired
before the issue of the certificate which are extinguished and rights so acquired after the issue of the
certificate, which are preserved. But s 69 contains a positive provision to the effect that the land which shall
be included in any certificate of title or registered instrument (which by definition includes a transfer) shall
be deemed to be subject . . . to any rights acquired over such land since the same was brought under the
operation of this Law under any statute of limitations. . . notwithstanding the same . . . . may not be
specially notified as incumbrances in such certificate or instrument.
The construction which it might be proper to place on s 67 construed in isolation is in flat contradiction
of the express provisions of s 69. The two sections must clearly be read together and so far as possible
reconciled with each other. If the words subject to the subsequent operation of any statute of limitations
had been omitted from s 67 it would have been reasonably plain that s 67 must be understood as taking
effect subject to the provisions of s 69 regarding rights acquired over the land in question since first
registration under any statute of limitations, and it can hardly be right to hold that the inclusion in s 67 of the
words subject to the subsequent operation of any statute of limitations should by implication abrogate the
express saving accorded by s 69 to all rights of this description acquired since first registration, whether
before or after the date of the certificate of title for the time being in force.
Even if the word subsequent in s 67 should be construed as meaning subsequent to the issue of the
certificate in question, the two sections in their Lordships opinion can and should be reconciled by treating

as applicable to s 67 the deeming provision enjoined by s 69. There is, so far as their Lordships can see,
no reason why that provision, which is expressed in perfectly general terms, should not be so applicable.
The result of applying it quoad limitation to s 67 is that the part of that section under which the certificate is
to be conclusive evidence that the person therein named as proprietor of or having any estate or interest in
the land therein described is seised or possessed of such estate or interest must be read as if it was
followed by a proviso in terms conforming to the language of s 69, ie, a proviso to the effect that the land
described in the certificate is to be deemed to be subject to any rights acquired over it since first registration
under any statute of limitations, notwithstanding that they are not notified as incumbrances in the certificate.
If it is objected that this construction of s 67 makes the words subject to the subsequent operation of any
statute of limitations mere surplusage, the answer is that even if that is so the anomalous and indeed
absurd results ensuing from excluding all certificates quoad the effect of limitation from the deeming
provision in s 69, so far as rights acquired prior to their issue are concerned, are in their Lordships view so
extreme as to justify the construction so far placed on the two sections notwithstanding that the words above
quoted may be said to be rendered otiose by the construction. But it does not appear to their Lordships that
the construction so far placed on the two sections does necessarily render wholly otiose the words subject
to the subsequent operation of any statute of limitations in s 67. Let a case be supposed in which some
part of

420
the land described in a given certificate had prior to its date been acquired from the registered proprietor
by virtue of twelve years possession since the date of the first registration of the land so described. Then
under ss 67 and 69, as their Lordships have so far construed them, the certificate would be conclusive
evidence that the person named in the certificate as proprietor of or having any estate or interest in the land
therein described was seised or possessed of such estate or interest subject to the rights acquired over a
part of such land by virtue of twelve years possession between the date of the first registration and the date
of the certificate, those rights falling to be regarded by virtue of s 69 as if they had been notified as
incumbrances in the certificate. But in the absence of any provision to the contrary it might be argued that s
67 made the certificate conclusive evidence that the land was held as described in the certificate subject
only to rights acquired by limitation between the date of the first registration of the land and the date of the
certificate and therefore ranking as registered incumbrances at that date, and not to any rights so acquired
after the date of the certificate. The words subject to the subsequent operation of any statute of limitations
might thus be regarded as having been put into s 67 ex abundante cautela to meet any argument of this
kind.
But the same conclusion can in their Lordships view be reached by another route. The critical words in
s 67 subject to the subsequent operation of any statute of limitations contain the first of the only two
references to limitation to be found in the law. The reader is thus invited to look further to see what provision
is made later in the Law in regard to the operation of any statute of limitations, the brief reference to
limitation in s 67 being in itself of doubtful import. Looking further, the reader comes to s 69 and he there
finds a provision to the effect that the land included in any certificate is to be deemed to be subject to any
rights acquired over such land since the same was brought under the operation of the Law under any statute
of limitations, notwithstanding that such rights may not be specially notified as incumbrances in such
certificate. Having reached this point, is he not justified in concluding that the reference to limitation in s 67
is a mere reference forward to the provision in regard to limitation contained in s 69, and that subsequent
in s 67 is no more than a short way of saying what is said by s 69 in the words since the same [ie, the land]
was brought under the operation of this Law? In their Lordships view this construction, which can be
compendiously described as making the word subsequent in s 67 mean subsequent to the date of issue of
the first certificate issued in respect of the land in question, can legitimately be adopted for the purpose of
reconciling the provisions of the two sections.
Accordingly their Lordships hold that on one or other of the methods of construction which they have
propounded the defendants contention as to the effect of ss 67 and 69 should prevail.
The scheme of s 69 is reasonably plain. The registration of the first proprietor is made to destroy any
rights previously acquired against him by limitation, in reliance no doubt on the provisions as to the
investigation of the title to the property and as to notices and advertisements, which are considered a
sufficient protection to anyone claiming any right of that description. But from and after the first registration
the first proprietor and his successors are exposed to the risk of losing the land or any part of it under any
relevant statute of limitations to some other person whose rights when acquired rank as if they were
registered incumbrances noted in the certificate, and accordingly are not only binding upon the proprietor
against whom they are originally acquired but are not displaced by any subsequent transfer or transmission.
See as to transfers s 84 which provides that the transferee shall be subject to and liable for all and every
the same requirements and liabilities to which he would have been subject

421
and liable if he had been the former proprietor. This language indicates an intention to put the
transferee in the same position for all purposes as the previous proprietor; and although the words used are

not particularly apt to describe rights acquired by limitation, a transfer is in any case one of the instruments
to which the deeming provision of s 69 is applicable.
The combined effect their Lordships would attribute to ss 67 and 69 may perhaps be criticised as
inconvenient, in that it places upon a purchaser of registered land the onus of going behind the register, and
satisfying himself that no adverse interest by limitation has been acquired, in every case in which more than
twelve years have elapsed since the title was first registered. But that is simply the result of the policy
adopted by the law of preserving rights acquired by limitation notwithstanding that they are not noted in the
register.
At all events their Lordships construction of ss 67 and 69 has the merit of consistency, and avoids the
anomalous and absurd results which would ensue from the adoption of the construction which the plaintiff
seeks to place upon the two sections. On that construction a man could acquire a title to registered land by
twelve years possession and having done so enforce it against the registered proprietor, although no note of
it was on the register, provided that no new certificate had been issued since his title by limitation was
acquired. But the issue of a new certificate in whatever circumstances and for whatever reason, would
destroy a complete title by limitation after it had been acquired. Thus if a transferee or person entitled by
transmission was to demand and obtain a fresh certificate under s 87, any right over the land previously
acquired by limitation would be extinguished, but if for any reason he did not do so the right would remain.
More than one other example might be given but their Lordships are content to confine themselves to the
actual case now before them. What happened here was that the Administrator General having lost the new
certificate issued to him on 7 May 1919, as having become entitled by transmission to Nos 101 and 103,
applied for and obtained a further new certificate in place of the lost one under s 81 of the Law, such further
new certificate being dated 16 October 1941. It is claimed on the plaintiffs behalf that the purely fortuitous
circumstance of the loss of the certificate of 7 May 1919, and the consequent issue of the certificate of 16
October 1941, to take its place, had the effect of defeating the title by limitation to the disputed strip which
the defendant had acquired under s 3 of the Limitation of Actions Law [J] on the expiration on 12 April 1940,
of the period of twelve years from 12 April 1928, when No 105 together with the disputed strip came into his
possession. Their Lordships find it quite impossible to attribute this effect to the issue of a new certificate in
place of a lost one. Section 81 provides in such a case for the issue of a new certificate in place of the
former certificate. This language appears to their Lordships to indicate that the new certificate is merely a
substitute for the lost one and that the procedure under s 81 whereby it is obtained merely has the effect of
placing the proprietor in the same position as if the former certificate had not been lost, and does not bring
about any alteration of rights. It may be observed that s 81 extends to the destruction as well as the loss of
a certificate and that so far as destruction is concerned it is not confined to accidental destruction. Thus
according to the plaintiffs argument it would seem that if the proprietor was minded to defeat a right to his
land acquired by limitation he could do so by the simple expedient of destroying his certificate and obtaining
a new one under s 81. This surely cannot be right.
As to the case of Goodison v Williams ((1931), Clerks Reports (Jamaica) 349), the decision of the
Court of Appeal by which they held themselves bound to decide the question of limitation in the present case
in favour of the plaintiff, that was a case in which after a title by twelve years possession had been acquired
by another person, the registered proprietor transferred the land and a new certificate was issued to the
transferee

422
pursuant to what is now s 87 of the Law. It was held by the majority of the court (Clark And Radcliffe JJ)
that the issue of the new certificate to the transferee had the effect of defeating the title acquired by
limitation. The third member of the court, Brown Ag CJ, dissenting, held on substantially the same grounds
as those already stated by their Lordships that the certificate did not have this effect but that the title by
limitation was preserved by what is now s 69, which must be read as qualifying what is now s 67. Clark J,
appears to have based his decision mainly upon the view that the exclusive possession of rights over land
contained in s 69 applied only to rights in the nature of easements and so forth, and not to the right of
exclusive possession over the land itself. It appears to their Lordships that this view is untenable having
regard to the express reference to any statute of limitations.
Radcliffe J, appears to have held that even if the deeming provision in s 69 did apply to rights of
exclusive possession acquired by limitation, that carried the matter no further, having regard to the terms of
s 67; and that s 69 did not affect a bona fide transferee for value who found no notice on the register of an
adverse claim. This reasoning appears to their Lordships to ignore the express provision in s 69 to the
effect that the rights acquired by limitation to which it applies are to be preserved notwithstanding that they
may not be specially notified as incumbrances in the certificate or other instrument.
Their Lordships are of opinion that the view taken by the Acting Chief Justice in Goodison v Williams
((1931), Clerks Reports (Jamaica) 349) in his dissenting judgment was right, and that the majority decision
in that case was wrong and should be regarded as overruled.
Other Jamaican cases were referred to in the course of the argument. Their Lordships find it
unnecessary to mention any of these with the exception of Dartadeen v Watson ((1937), 3 JLR 87), in which

a Court of Appeal of two judges was equally divided in a case involving a title acquired by limitation to
registered land and the effect thereon of what are now ss 67 and 69 of the Law, Furness CJ, distinguishing
Goodison v Williams ((1931), Clerks Reports (Jamaica) 349) and upholding the claim to a title by limitation,
and Sherlock J, taking the opposite view.
It was suggested in argument that on the principle of stare decisis their Lordships should not disturb the
decision in Goodison v Williams ((1931), Clerks Reports (Jamaica) 349). But the only decision bearing
upon the point is Goodison v Williams ((1931), Clerks Reports (Jamaica) 349) itself, which was a majority
decision reached by the two judges who formed the majority on different grounds, and strongly dissented
from by the other member of the court. In Dartadeen v Watson ((1937), 3 JLR 87) the court was equally
divided as to the application of Goodison v Williams ((1931), Clerks Reports (Jamaica) 349) to the facts of
that case, which accordingly adds nothing by way of authority one way or the other:
Moreover, it must be remembered that the present appeal differs from Goodison v Williams ((1931),
Clerks Reports (Jamaica) 349) in that it is concerned with the special case of a certificate issued in the
place of a lost certificate.
Accordingly, there is not in their Lordships judgment any such uniform current of authority as would be
required to justify them in departing from their own view of the construction and effect of the Registration of
Titles Law [J] with respect to limitation in deference to the principle of stare decisis, which in their judgment
has no application here.
For the reasons which they have stated their Lordships are of opinion that the defendant, while failing
on the question concerning the inclusion of the disputed strip in the plaintiffs registered title, succeeds on
the question of limitation.
Their Lordships will therefore humbly advise Her Majesty that this appeal should be allowed and the
Order of the Court of Appeal dated 30 July 1954, set aside and the Formal Judgment of the Supreme Court
dated 25 July 1953, restored.
The plaintiff must pay the costs of the present appeal and the costs awarded against him by the
judgment of the Supreme Court as now restored; but in the

423
somewhat unusual circumstances of the case their Lordships consider that each party should pay his
own costs of the appeal to the Court of Appeal.

(1959) 1 WIR 424

Charles James And Others v R

SUPREME COURT OF BRITISH GUIANACOURT OF CRIMINAL APPEAL
HOLDER C J, LUCKHOO AND DATE JJ
24, 25, 31 JULY, 1, 4-8, 10, 12-14 AUGUST, 18 SEPTEMBER 1959

Criminal law Trial View of locus in quo without witnesses Demonstrations among jurors Absence of
accused at demonstrations Not necessary for evidence to be given of what occurred at the view Criminal
Law (Procedure) Ordinance, Cap 11 [BG], ss 45, 173.
Section 45 (1) of the Criminal Law (Procedure) Ordinance, Cap 11 [BG], provides that where in any case it is
made to appear to the court or a judge that it will be for the interests of justice that the jury who are to try or
are trying the issue in the cause should have a view of any place, person, or thing connected with the cause,
the court or judge may direct that view to be had in the manner, and upon the terms and conditions, to the
court or judge seeming proper.
Held:(i) on a simple view without witnesses the jury may carry out demonstrations among themselves with a
view to testing the credibility or accuracy of the testimony of a witness.
(ii) on a visit of a jury to a locus in quo the removal and replacement of an object there at the trial judges
direction is not the giving of evidence and the absence of the accused when those acts are done does not
constitute an irregularity.
(iii) where a simple view without witnesses is had by a jury it is not necessary for evidence to be given on
oath of what the jury did or were shown at the view.
Appeals dismissed.

Cases referred to
Karamat v R [1956] 1 All ER 415, [1956] AC 256, 120 JP 136, 100 Sol Jo 109, 40 Cr App Rep 13, PC, 3rd
Digest Supp
Tameshwar v R [1957] 2 All ER 683, [1957] AC 476, 121 JP 477, 101 Sol Jo 532, 41 Cr App Rep 161, PC,
3rd Digest Supp
Appeals
Appeals against convictions and sentences. The appellants were convicted before Phillips J, at the
Demerara Criminal Sessions on 23 April 1959, of murder and were sentenced to death. They appealed
against their convictions and sentences on several grounds, inter alia, that certain irregularities took place at
a simple view directed by the trial judge, which vitiated the trial.
P A Cummings for the appellant James
H O Jack for the appellant Henry
N J Bissember for the appellant Semple
G S Gillette Acting Solicitor-General for the Crown
Cur adv vult
HOLDER CJ delivered the judgment of the court: The appellants Charles

424
James, Wilbert Henry and Dennis Semple were, on 23 April 1959, convicted of the murder of George
Cantzlaar after a trial lasting several days before Phillips J, and a jury and were sentenced to death. From
their convictions they have appealed.
The appellants together with Edward Jones and Reynold Culpepper had been indicted for the murder of
Cantzlaar. A nolle prosequi was entered by the Crown in respect of Edward Jones who was called at the
trial as a witness for the prosecution. Culpepper was on the direction of the trial judge acquitted by the jury
at the close of the case for the prosecution.
The deceased Cantzlaar was on 10 January 1959, employed as a prison officer at the Georgetown
Prison. At 2 pm on that day he went on duty in charge of the solitary confinement division of the prison (also
referred to in the evidence as the punishment division) where nine prisoners including the appellants, Jones,
Culpepper, Douglas Lewis, called Sotie, and Hubert Benjamin, who was called as a witness for the
prosecution, were prisoners confined in separate cells. Shortly after 3.15 pm he was found lying in the cell
in which the appellant Henry had been confined, with two prisoners towels and a prisoners night-shirt tied
around his neck. His boots had been taken off his feet which were tied together closely just above the
ankles with his boot-laces and a piece of chain. On being examined by the prison surgeon, Dr Jaikaran, he
was found to be dead. On a post-mortem examination conducted by Dr Nehaul, the Senior Government
Bacteriologist and Pathologist, the cause of death was found to be strangulation.
Dr Nehaul stated in evidence that from the injuries he saw on examination of the deceaseds body,
more especially the neck, he was of the opinion that a band-like object such as a rolled-up towel had been
applied around the neck and the body suspended by the band-like object by two or more persons holding on
to each end of the band.
The solitary confinement division is situate on the ground floor on the eastern side of a building known
as the Brick Prison. There are twelve cells in that division; six of them are on the northern side and are
numbered consecutively 1 to 6 from west to east. On the southern side there are six cells numbered
consecutively 7 to 12 from east to west. A passageway some 10 feet wide separates the cells on the
northern side from those on the southern side. The cell doors open outwards into the passageway and each
door is fitted with a lock and two iron bars which can be placed across the doorway into iron slots.
On 10 January 1959, the cells were occupied as follows: in cell No 2, Hubert Benjamin; in cell No 4, the
appellant Charles James; in cell No 5, Douglas Lewis; in cell No 6, Culpepper; in cell No 7, Edward Jones; in
cell No 8, the appellant Henry; in cell No 9, the appellant Semple; in cell No 11, Edward Steele; in cell No 12,
Sydney James. No prisoner was confined in cells Nos 1 and 3, and cell No 10 was in use as a store room.
To the west of the solitary confinement division on the ground floor is the social diseases section. That
section is divided from the solitary confinement division by a wooden door comprised of laths. On 10
January 1959, there was a large window at the eastern end in the solitary confinement division across which
there were spaced bars and in the social diseases section there was a similar window at the western end.
The length of the passageway from No 7 cell to the door leading to the social diseases section is about 35
feet. The eastern window looks out on to a portion of open ground about 7 feet from the kitchen.

There are two floors situate above the ground floor in the Brick Prison. The floor above the ground floor
is known as the No 2 landing and the floor of that landing consists of boards with laths in the centre.
Standing on the laths it is possible to see the ground floor through the spaces between the laths.
Between cell No 10 and cell No 11 in the solitary confinement division a corridor leads south at rightangles to the passageway to a wooden door consisting

425
of spaced boards or laths opening out into the exercise yard where prisoners are exercised under the
supervision of prison officers. At the eastern end of the exercise yard is situate the prisoners bath and
lavatory which are covered by a zinc shed. This roof is a short distance south of the window of cell No 7
which faces south. At the eastern, southern and western ends of the exercise yard are walls topped by
spikes. Immediately south of the southern wall is a public thoroughfare, DUrban Street.
The case for the prosecution is that in order to effect their escape from prison the appellants and Lewis
attacked the deceased, the appellant James and Douglas Lewis strangling the deceased with towels and the
appellants Henry and Semple acting in concert with them in the attack on the deceased. The appellants and
Lewis made their escape via the exercise yard over the DUrban Street wall. The appellants were soon
recaptured but Lewis made good his escape and died some days later.
[The court proceeded to deal with matters which call for no report and continued:]
It was submitted on behalf of the appellants that the trial judge wrongly exercised his discretion in not
directing a view of the locus in quo at the time when a view was requested by the jury and by counsel for the
appellant James. The first witness who testified at the trial was Edward Jones, one of the two eye-witnesses
called by the prosecution. Prison Officer Peters then gave evidence describing the layout of the solitary
confinement division and the position of the cells therein and he was followed by Michael Greaves, a sworn
land surveyor who tendered a simple plan of the solitary confinement division showing the position of the
cells therein and the passageway. After Greaves had given evidence the jury requested a visit to the locus
in quo. They did not indicate that they desired to have witnesses or demonstrations by witnesses at the
view. Counsel for the appellant James then requested a view with witnesses and referred the trial judge to
the judgment of the Privy Council in Karamat v R ([1956] 1 All ER 415, [1956] AC 256, 120 JP 136, 100 Sol
Jo 109, 40 Cr App Rep 13, PC, 3rd Digest Supp) ([1956] 1 All ER at p 416) where the procedure which was
adopted at the view in that case is set out. The trial judge then said that a visit to the locus was in his
discretion and that if he decided that there should be a visit he would make an order at the proper time. The
trial judge did in fact make an order for a simple view at the close of the case for the defence after
ascertaining from the jury that they still wished to have a view. The jury did not indicate that they desired to
have witnesses or demonstrations by witnesses at the view.
Counsel for the appellants contended that it appeared to be essential that the jury should visit the locus
immediately after Greaves had testified and had tendered the plan as the jurys request indicated that they
were desirous of getting a mental picture of the various positions referred to in the evidence of the witness
Jones and that a visit to the locus at that stage of the proceedings would have afforded counsel an
opportunity of asking more searching questions. Counsel further contended that there was a miscarriage of
justice by reason of the failure of the trial judge to direct a view at that stage especially in view of the order
subsequently made by him for a view without witnesses or demonstrations. We see no merit in this
submission. The evidence of the eye-witness Benjamin and the other witnesses for the prosecution as well
as witnesses the defence may have desired to call had yet to be given and any visit at that stage would, in
our opinion, have been premature and not likely to advance the cause of justice. Moreover the evidence of
Peters and Greaves and the simple plan tendered indicated a layout quite easy to visualise and the fact that
the jury had a view later on could not possibly have worked any injustice towards the accused persons. In
our view the trial judge not only exercised his discretion judicially in the matter but we are of opinion also that
he correctly exercised his discretion.

426
It was next submitted on behalf of the appellants that the trial judge erred when in the exercise of his
discretion he ordered a simple view without witnesses and without demonstrations by witnesses.
It was contended by counsel that in view of the evidence given at the trial and the existence of prejudice
and self-interest in the witnesses Jones and Benjamin and the mental illness of the latter, a simple view was
useless and it was vital to the defence that there should be a view with witnesses and demonstrations by
witnesses where the defence would have an opportunity of testing the truth and accuracy of the accounts of
the crime given by the eyewitnesses. Counsel argued that the direction by the trial judge for a simple view
only was in effect the exclusion of evidence which might have assisted the defence and the appellants were
thereby precluded from fully putting their defence to the jury and that this amounted to a miscarriage of
justice.
In England, as in the territories overseas where the administration of the criminal law is patterned on
that of England, a trial by jury is based on the evidence given and not on a re-enacting of the crime at the
scene. It is true that in certain cases demonstrations by witnesses at a view may assist the jury in finding
out just what they want to know as was the case in Karamat v R ([1956] 1 All ER 415, [1956] AC 256, 120 JP

136, 100 Sol Jo 109, 40 Cr App Rep 13, PC, 3rd Digest Supp) where it was pointed out by the Privy Council
that not only were there numerous witnesses but a good deal depended on the locality a large area of
agricultural land with dams and trenches and where the various witnesses were at the times to which they
spoke in evidence and that the witnesses were illiterate and of low intelligence with a very poor command of
the English language. No such criticism has been made in the present case. In Karamats v R case [(1956]
1 All ER 415, [1956] AC 256, 120 JP 136, 100 Sol Jo 109, 40 Cr App Rep 13, PC, 3rd Digest Supp), as was
also pointed out by the Privy Council, the view was desired so that the witnesses might indicate to the jury
the positions at which they alleged they were at the material times and the direction from which others
approached the scene of the shooting and to test the opportunity afforded for identification. In the present
case not only was the area of the locus very restricted but also the positions of the eye-witnesses were at
fixed points and no assistance could have been got by the jury by having those witnesses place themselves
in those positions. The range of the witnesses vision through the spaces could not be tested by placing
them in those positions for the jury could not see through the eyes of the witnesses. The jury were afforded
the opportunity of testing for themselves the range of vision from those points. To have carried out
demonstrations by or with witnesses as to the visual acuity of those witnesses which is subjective would
have been misleading to the jury for the degree of illumination by natural light or by both natural and artificial
light depending upon whether or not the lights in the passageway were on or off at the material time was not
known to be the same at the time of the view and, moreover, it is clear from the record that the eastern
window of the solitary confinement division had been covered with mesh since that date and this had cut
down the degree of natural illumination in the passageway.
It is difficult to see just what could have been learnt by demonstrations by witnesses at a view that could
not have been learnt by questions put to the witnesses in the witness-box. It was stated by counsel for the
appellant James that there was no evidence given as to the position of the deceased at the time of the
attack on him. From the evidence of Jones it seems clear that the deceased with not within the range of his
vision at that point of time. Jones evidence is that he heard a sound uh and then saw the appellant and
Lewis carrying the deceased. Benjamin has stated that he saw James hold the deceased by the neck from
behind. It would have been quite a simple matter for the deceaseds position at that point of time to be
elicited by counsel in cross-examination of Benjamin if he thought it of importance to the defence by
reference to any one of several fixed points, for example, by reference to the door of a particular cell.

427
We have carefully examined the evidence on the record and find ourselves unable to agree with the
submissions of counsel on this point.
It was also submitted on behalf of the appellants that certain irregularities occurred in respect of the
view which cumulatively may well have resulted in a miscarriage of justice. Counsel for James and for
Henry at the trial attended the view but counsel for Semple declined to do so. The irregularities complained
of are as follows:
(i) The trial judge requested the Superintendent of Prisons, who was not a witness at the trial
before the commencement of the view to put the place in as near as practicable the same condition as
it was at the time of the incident.
(ii) There was present at the view the Deputy Superintendent of Prisons, Major Candy, who was not
a witness at the trial and whom it was submitted was therefore an unauthorised person attending the
view.
(iii) The lights in the passageway of the solitary confinement division were on at the time of the view
by the jury.
(iv) The jury were permitted to carry out demonstrations among themselves at the view.
(v) The trial judge although he ordered a simple view directed the mesh on the outside of the
window of cell No 7 (Jones cell) to be removed and permitted members of the jury standing on the
shed over the bath and lavatory to inspect the window with the mesh on and the mesh off.
(vi) The appellants who were present when the jury viewed the solitary confinement division were
not taken into the exercise yard when the jury visited that yard and inspected the window of cell No 7.
(vii) On the courts return from the view no evidence on oath was given in respect of what the jury
did or were shown at the view.
At the request of counsel for the appellants an agreed statement in respect of what took place at the
view and signed by them and by counsel for the prosecution (who appended certain reservations) was
submitted to us and at our request the trial judge submitted a report and a further report clarifying certain
points emerging from the submissions of counsel. Counsel for the appellants and the learned SolicitorGeneral accepted the trial judges reports as accurately stating what had taken place at the view. We will
refer to the contents of the trial judges reports in dealing with the various irregularities alleged to have taken
place in respect of the view:

(i) From the evidence it was clear that certain alterations had taken place at the locus since the incident
and the request made by the trial judge was no doubt with a view to the jury having the opportunity to see
the locus as nearly as practicable as it was at the time of the incident. To see whether such a request by the
trial judge could possibly have affected the result of the trial, it is necessary to have regard to what was done
in the carrying out of the request. Counsel have stated that possibly as a result of the judges request to the
Superintendent of Prisons, the lights in the passageway of the solitary confinement division were put on.
There is however, nothing to suggest that the lights were put on as a result of the judges request and when
the judge asked counsel at the view whether they wished the jury to see anything or whether they would like
to see anything themselves in the presence of the jury, counsel made no request of the judge to have the
lights turned off. It was also stated by counsel that the mesh on the outside of the window of cell No 7 was
removed at the direction of the trial judge. This was after the trial judge had been told by the Superintendent
of Prisons out of the hearing of the jury that the mesh had been placed across the cell window at his
direction subsequent to the incident.
These are the only complaints made of any alteration being done as a result of the trial judges request
to have the locus in as nearly as practicable the

428
condition it was in when the incident occurred. Both of these matters we shall deal with under heads
(iii) and (v) hereunder.
(ii) The presence of Deputy Superintendent of Prison Major Candy at the view was known to the judge
and permitted by him and he was therefore an authorised person present at the view despite the judges
order appearing on the record before the view was had that the judge, jury, prisoners and counsel only to
be present. A judge is not hide-bound by an order he has made as to the mere presence of persons at a
view but he may in his discretion vary his order by permitting any other person to be present.
(iii) As we have pointed out, there is nothing to suggest that the lights were put on for the purpose of the
view and in any event apart from Benjamins evidence that at the material time the lights were off, there is no
evidence from any of the other witnesses as to whether the lights were on or off at the material time and the
lights were found by Shrivnauth to be on when he came into the solitary confinement division soon after the
incident had occurred. We have also pointed out that though given the opportunity by the trial judge at the
view, counsel did not request the lights to be turned off in the presence of the jury. We can see no
irregularity in the lights being on at the time of the view.
(iv) and (v) Complaint has been made that the jury were permitted to carry out demonstrations among
themselves at the view. Counsel for James has stated that the jury went into cells in the solitary
confinement division, though he does not allege that he was aware of any demonstrations being carried out
by the jurors among themselves therein. Complaint was also made that the jury were permitted to inspect
the window of cell No 7 with the mesh affixed to that window on the outside and with the mesh off and that
members of the jury climbed on the shed near to the window and looked at the window while one or more of
their number were in cell No 7. The judge in his report has stated that on being informed (not in the hearing
of the jury) that the mesh had been placed there at the instructions of the Superintendent of Prisons after the
incident, he considered it only fair that the jury should see the cell window with the mesh on as well as off
and it is important to observe that nothing was said to the jury when the mesh was removed or replaced.
Counsel for the appellants have submitted that it is an irregularity which goes to the root of the trial where
the jury carry out demonstrations among themselves at a simple view and that a simple view is intended
only as an inspection of an object and nothing more. Counsel has referred us to the judgment of the Privy
Council in Tameshwar v R ([1957] 2 All ER 683, [1957] AC 476, 121 JP 477, 101 Sol Jo 532, 41 Cr App Rep
161, PC, 3rd Digest Supp), where it was held, as is stated in the headnote, that although there may be
nothing wrong with a simple view of an object or a scene by the jury, without witnesses being present, taking
place in the absence of the trial judge, it is wrong for a view with witnesses to take place in the absence of
the judge and it is a defect which would vitiate the trial. Tameshwars v R case ([1957] 2 All ER 683, [1957]
AC 476, 121 JP 477, 101 Sol Jo 532, 41 Cr App Rep 161, PC, 3rd Digest Supp) is not an authority as we
read it for the proposition that at a simple view the jury may not among themselves properly carry out
demonstrations with a view to testing the credibility or accuracy of the testimony of a witness. As the Privy
Council pointed out (41 Cr App Rep at p 169):
If witnesses give demonstrations or answer questions at a view, that is undoubtedly part of the trial
and must be had before the judge and jury. These observations do not apply to a simple view without
witnesses. It is rather like their examination of an exhibit or a plan in the jury room without the judge
being present, but the judge usually sees it himself too.
The last sentence of this passage is in point. The jury may make an examination of an exhibit in the
jury room. So too can they at the locus in quo where the object is too cumbrous to bring or cannot be
brought into the jury room.

429

For example, on a simple view of a motor car in a case of motor manslaughter we can see no objection to a
juror turning up or down the window glasses and looking into the car with the glasses up and with them
down where an issue in the case is one of identity of the driver at the time of the accident. We see no
objection to the jury carrying out demonstrations among themselves designed to test the credibility or
accuracy of the testimony of a witness. In any event we do not appreciate how the removal or replacement
of the mesh could be regarded as prejudicial to the appellants for, as the Solicitor-General in his analysis of
the evidence has pointed out, whether the mesh was or was not on the back of the cell window and whether
France could or could not see Jones at the bars in his cell if the mesh were on at that time, could not affect
the jurys acceptance or rejection of Jones testimony in any way for the testimony given in the defence of
the appellant James is to the effect that Jones had been locked back in his cell by Lewis prior to James
escape over the wall when Prison Officer France was endeavouring to climb after him on the shed.
This submission therefore fails.
(vi) Complaint was also made that the appellants were not present in the exercise yard when the jury
visited it and saw the removal and replacement of the mesh on the window of cell No 7. From the report
submitted to us by the trial judge and from what counsel for James has stated to us it appears that neither
the trial judge nor counsel who attended the view were aware that the appellants had not been taken into the
exercise yard at that point of time. Had demonstrations been given there by witnesses, this would have
been part of the trial and the giving of evidence in the absence of the accused persons who, under the
provisions of s 173 of the Criminal Law (Procedure) Ordinance, Cap 11 [BG], are entitled to be present
throughout the whole of their trial unless they misconduct themselves by so interrupting the proceedings as
to render their continuance impracticable but the judge may if he thinks it proper permit accused persons to
be out of court during the whole or any part of the trial on any terms he deems right. Counsel has
contended that the removal and replacement of the mesh by a person other than a witness at the direction
of the judge was a demonstration which was an irregularity. It could hardly be successfully contended that if
the trial judge himself had removed and replaced the mesh, he would be giving a demonstration which
would render him liable to be called as a witness at the trial.
The same criticism might be made if a juror were himself to turn up or down at a simple view the
window glasses in a motor car exhibited in a motor manslaughter case where the identity of the driver by
eye-witnesses is in issue or if a juror in the jury room were to look with the aid of a magnifying glass at a
documentary exhibit alleged to be a forgery.
We do not agree with counsels contention that the removal and replacement of the mesh at the judges
direction was the giving of evidence and consequently though it would have been desirable that the accused
persons having been taken to the locus in quo should have been present in the exercise yard when the
judge, jury and counsel went there, no irregularity has occurred by reason of their absence therefrom.
Counsel for the appellant James has stated that on returning from the exercise yard into the solitary
confinement division he then for the first time realised that the appellants had not been taken into the
exercise yard when the jury went there, and that he did not draw this fact to the attention of the trial judge
because its significance did not strike him at the time.
The submission on this point also fails.
(vii) On the resumption of the trial after the court and jury had completed their visit to the locus in quo,
the Marshal, who along with three police constables had been sworn to take the jury to the scene and to see
that no communication be made to the jury by any unauthorised person, testified that the jury had visited the
locus in quo and that as far as he knew there had been no

430
communication with the jury by any unauthorised person. This witness was not asked any questions
when the judge asked counsel if they wished to ask any questions arising from the visit to the locus in quo.
It is in our view not necessary when a simple view is had for evidence of that fact to be given. We see no
irregularity in the matter of which complaint has been made under this head. The submissions of counsel on
this ground of appeal are in our view without substance.
It was further submitted that inadmissible and prejudicial evidence was wrongly let in when
Superintendents of Police De Abreu and Austin testified as to the tests they carried out after Jones had
spoken to De Abreu and indicated the ventilation opening at the bottom of his cell. The evidence (to which
objection was not taken at the trial) was to the effect that Austin lay flat on the floor of cell No 7, peeped
through the ventilation space in the door and clearly saw De Abreu as he stood in cell No 4 spinning a towel
and was obviously designed to test Jones story that from the same position in his cell he had seen Semple
spinning a towel in James cell. Austin also stated that from that same position in cell No 7 he could see De
Abreu come out of cell No 4 and walk diagonally across the passageway towards the corridor leading to the
exercise yard and that as De Abreu reached near the corridor his legs disappeared from view. This
evidence was clearly designed to show the range of vision from the ventilation opening in cell No 7.
We are of the view that the evidence given by these witnesses was admissible and this ground of
appeal also fails.

It was also urged on behalf of the appellant James that a question had been asked by the judge of the
witness Assistant Superintendent of Prisons Simpson tending to show that James had previously escaped
from lawful custody. Nothing appears on the record as to the question or the answer given but the judges
report on this aspect which the court requested and which is not contradicted by counsel for the appellant
James shows that the question asked by the judge related solely to prisoners other than the appellant.
It was submitted on behalf of the appellants Henry and Semple that the evidence of the attack by those
two appellants on Prison Officer Lambert was inadmissible and prejudicial. In dealing with Lamberts
evidence the trial judge told the jury:
Now, members of the jury, when you listen to what Lambert says you will ascertain what part the
other two prisoners took in this affair and whether it is not a link, a concerted action, a common design
to kill Cantzlaar to encompass their escape and to attack all other prison officers that would be in their
way.
One sentence I will remind you of in the evidence of Edward Jones. He said, Lewis called
Lambert. Douglas Lewis called to Lambert after Dennis Semple had been spinning the towel and
Cantzlaar had come in and they had disposed of him and put him in the cell, and they started to spin
the towel again; and when Dennis Semple was spinning the towel you can imagine the anxiety in
waiting because when Douglas Lewis was brought in by Cantzlaar it might have been expected that
Lambert was following behind.
Two officers usually take in the prisoners; but Lambert was out in the exercise yard so Lewis calls
for Lambert whilst the towel is being spun; and you saw the distance between the number 4 cell and
the corner of the passageway to go to the exercise yard. So that where the cells were, as Lambert
would have made that turn the towel was being spun by the number 3 accused.
But Douglas Lewis called Lambert. He never came. He was in the exercise yard, happily, you may
say. It is a matter for you, but happily for Vernon Lambert that he remained in the exercise yard, or at
least you would

431
have asked yourselves this question: What would have happened to that spinning towel; the
second spinning towel?
Lambert has stated in evidence that he was attacked five minutes after he last saw the deceased who
was then taking Lewis to the solitary confinement division from the bathroom.
In our view Lamberts evidence of the attack on him was admissible for the purpose stated by the trial
judge in the passage cited above and also as part of the res gestae.
It was also submitted that no proper warning was given the jury as to the corroboration of the evidence
of an accomplice. In this regard the trial judge told the jury:
The next matter that I have to bring to your notice is in respect of the witness Edward Jones. He
may be regarded as an accomplice. That is a matter for you. An accomplice is a person who is
implicated in the crime charged; who is so closely associated with it that he is regarded as an
accomplice; a person who is guilty of either being an accessory before the fact helping and assisting in
the crime, or an accessory after the fact. Those persons are accomplices.
It is for you to say on the evidence in this case whether you regard Edward Jones, a man whom the
Crown entered a nolle prosequi against, as an accomplice in this case, and it is my duty to inform you
and to warn you that it is dangerous to convict upon the uncorroborated evidence of an accomplice.
Therefore, you will look for some corroboration of the evidence of Edward Jones if you regard him as
an accomplice.
Corroboration in this regard means some independent testimony from some other witness which
proves, or tends to prove, or tends to show that the accomplice is speaking the truth and tends to show
that the crime has been committed and committed by the particular person against whom the evidence
is tendered.
You will look forward then to finding some evidence which implicates the accused to corroborate
the evidence of Edward Jones. The evidence that corroborates Jones may corroborate him as to one
prisoner but not as to another, and it is my duty to tell you also that one accomplice cannot corroborate
another.
So you have to consider the evidence of Hubert Benjamin. Is he also regarded by you as an
accomplice? Was he implicated in the crime of murder? Not in any other crime. Was he so closely
associated with it that you will say that he is an accomplice with all those who committed this act? If
you do not regard him as an accomplice then the evidence which he gives may corroborate Edward
Jones whom you may regard as an accomplice.
The question as to Benjamins mental capacity will be a different matter. That will depend upon the
weight that you attach to his evidence, if at all.

It is obvious, members of the jury, as men of common sense that it is not because a man has
innumerable convictions, and not because a man has been sent to the Mental Hospital or has eaten a
few electric bulbs, that he is incapacitated from witnessing something and speaking truthfully about it.
Your task is to find whether he has spoken truthfully that you can accept his evidence.
If you accept that Hubert Benjamin was not an accomplice then it would seem that his evidence
does in some respects corroborate Edward Jones. It is true indeed that the defence has suggested
that Hubert Benjamin also was implicated in it and that he panicked and ran back to his cell and asked
to be locked up. You must examine the whole circumstances and ask yourselves whether that has not
been suggested merely because Benjamin is a witness for the Crown, or whether he actually took part
in it.

432
It is contended that the opening sentence of the last paragraph cited above is not in accord with the
evidence and that the jury may have inferred that the judge was saying that Benjamins evidence
corroborated Jones in material particulars in respect of all three appellants. When the summing-up on this
aspect of the matter is read as a whole it is clear that this submission is untenable. The trial judge had
shortly before told the jury that evidence which corroborates Jones may corroborate him as to one prisoner
but not as to another and that one accomplice cannot corroborate another.
It was also submitted that remarks prejudicial to the appellants were made by the judge during the
course of his summing-up. During the course of this submission, counsel for the appellant James sought
and obtained our leave to refer to several passages which were not stated in the particulars filed by him in
respect of this ground of appeal but which counsel contended contained remarks prejudicial to the
appellants. During the course of this submission counsel also abandoned his contention in respect of
several of the passages stated in the particulars originally filed. We have examined the various passages
referred to by counsel and we are of the view that, although in certain instances the trial judge did indicate
clearly his opinion on the facts then being referred to by him, he was always at pains to make it clear to the
jury that they were the sole judges of the facts and could reject any view on the facts that he put to them and
in no instance did he withdraw from the jury any issue on the facts.
Lastly, it was submitted by counsel that the defence was not adequately put to the jury. Very early in his
summing-up the judge told the jury:
... but what the defence alleges is that as far as James is concerned he knew nothing at all about
it; that he only left the cell when it was opened by Lewis and he ran out. And so it is the defence of
Wilbert Henry and Dennis Semple.
Later, when dealing with the defence the trial judge read to the jury verbatim the statements given by
the appellants from the dock and he also read and commented on the evidence of the witnesses who had
testified on oath in the defence of the appellant James. The trial judge gave the jury a very clear direction
on the burden of proof and reminded them that they could only convict an accused person if the Crown had
proved to their complete satisfaction, and if they felt sure of, the guilt of that accused person.
The defence of each appellant was clearly and in our view adequately put to the jury.
There is also no substance in the submission by counsel for Henry that the trial judge treated the
defence of the three appellants as a joint defence. In fact the trial judge told the jury that although the
appellants were charged jointly they would have to consider the admissible evidence against each
separately and would have to return a verdict in respect of each separately.
The appeals fail on all points and are dismissed. The conviction in each case is affirmed.
Appeals dismissed.
Crown Solicitor (for the Crown).

433
(1959) 1 WIR 434

Harding v Ramjattan
FULL COURT OF THE SUPREME COURT OF BRITISH GUIANA
HOLDER C J AND LUCKHOO J
26 AUGUST, 24 SEPTEMBER, 18 DECEMBER 1959

Criminal Procedure Trial of indictable offences summarily Joint trial summarily of two indictable offences
charged against two persons Only one of such offences capable of being tried summarily Joint trial of
both summarily a nullity Summary Jurisdiction (Procedure) Ordinance, Cap 15 [BG], s 60 and First
Schedule.
Section 60 of the Summary Jurisdiction (Procedure) Ordinance, Cap 15 [BG], empowers a magistrate with
the consent of the accused to deal summarily with an indictable offence which is specified in the First
Schedule to the Ordinance if certain conditions are fulfilled. The offence of accessory after the fact to an
offence is not one of the offences specified in the Schedule.
The appellant H and one C were charged indictably on one information, H with the offence of embezzlement
by public officer, contrary to s 191 of the Criminal Law (Offences) Ordinance, Cap 10 [BG], which is one of
the offences specified in the Schedule to the Summary Jurisdiction (Procedure) Ordinance, Cap 15 [BG],
and C with the offence of accessory after the fact to the offence with which H was charged.
On the application of the prosecutor under the provisions of s 60 of the Summary Jurisdiction (Procedure)
Ordinance, Cap 15 [BG], that both charges be dealt with by the magistrate summarily, both the appellant
and C agreeing thereto after having been duly informed of their right to trial by jury, the magistrate
proceeded to hear and determine the charges together summarily. C was found not guilty on the charge laid
against him and was discharged while the appellant H was found guilty of the charge laid against him. The
appellant appealed against his conviction.
Held: (i) it was not competent for the prosecutor to apply for the offence of accessory after the fact to be
dealt with summarily and not competent for C to elect to be tried summarily nor for the magistrate to deal
summarily with the offence charged against C;
(ii) although the charge against C was dismissed the joint trial of the appellant and C was a nullity.
Appeal allowed.
No cases referred to.
Appeal
Appeal from conviction by a magistrate.
J O F Haynes for the appellant
G L B Persaud Senior Crown Counsel for the respondent
Cur adv vult
LUCKHOO J delivered the judgment of the court: The appellant Harding was charged indictably on an
information of embezzlement by public officer, contrary to s 191 of the Criminal Law (Offences) Ordinance,
Cap 10 [BG]. One Randolph Coddette was charged indictably on the same information as accessory after
the fact to the same offence. At the hearing of the charges before the magistrate of the Courantyne Judicial
District the prosecutor applied under the provisions of s 60 of the Summary Jurisdiction (Procedure)
Ordinance, Cap 15 [BG], for the offences to be dealt with summarily. The magistrate informed both the
appellant and Coddette of their right to be tried by a jury and they both elected to be tried summarily. The
magistrate thereupon proceeded to hear the charges summarily. Both accused testified on oath and were
cross-examined. At the conclusion of the hearing the magistrate convicted

434
the appellant on the charge as laid and dismissed the charge of accessory after the fact to the offence of
embezzlement by public officer laid against Coddette. The appellant has appealed against his conviction on
several grounds.
The indictable offences by adults which may be tried summarily are specified in the First Schedule to
the Summary Jurisdiction (Procedure) Ordinance, Cap 15 [BG]. Section 191 of the Criminal Law (Offences)
Ordinance, Cap 10 [BG]Embezzlement by public officeris one such offence. There is, however, no
reference in that schedule to the offence of accessory after the fact to any offence. It was not competent
therefore for the prosecutor to apply for the offence charged against Coddette to be dealt with summarily

and therefore not competent for Coddette to elect to be tried summarily or for the magistrate to deal
summarily with the offence.
The question to be determined is, what is the effect, if any, on the summary trial of the appellant, the
two charges having been heard together?
Counsel for the appellant submitted that the hearing by the magistrate was a nullity, the magistrate
having exceeded his jurisdiction in respect of the summary trial of the offence charged against the appellant.
He contended that this is analogous to the trial of two indictments together by consent, which has in England
been held to be a nullity.
The procedure adopted by the magistrate in dealing with the offence charged against Coddette was
wholly irregular. In our opinion the joint trial of both offences was a nullity for the reason that it was not
competent for the offence charged against Coddette to be tried summarily. It is also in our opinion
immaterial that the charge laid against Coddette was dismissed.
In view of the conclusion we have reached it is not necessary to deal with the other grounds argued by
counsel for the appellant. The appeal is allowed and the conviction and sentence against the appellant must
be set aside. The matter is remitted to the magistrate of the Courantyne Judicial District to be re-heard and
determined.
Appeal allowed.

(1959) 1 WIR 435

Radia And Others v Jagessar And Others

SUPREME COURT OF TRINIDAD AND TOBAGOAPPELLATE JURISDICTION
CAMACHO, BLAGDEN AND CORBIN JJ
24, 25, 26, 27 NOVEMBER, 6 DECEMBER 1958 8 MAY 1959
CHAMBERS COURT OF THE SUPREME COURT OF TRINIDAD AND TOBAGO
GOMES J
7, 11, 12, 14 DECEMBER 1956 2, 13, 16 MARCH 1957

Mining lease Lease of oil deposits and by - products in and under land Exception of surface
Reservation of fixed annual rent plus royalty on oil won Nature of mining lease Whether a true lease or a
sale of minerals.
Mining lease Reservation of rent and royalty Nature of royalty Whether royalty a true rent.
Mining lease Severance of reversion Apportionment of rent on severance among co-reversioners
Whether royalty apportionable and if so in what manner.
In 1934, four joint tenants of four contiguous parcels of land executed a memorandum of lease whereby they
purported to lease to one H, inter alia, all

435
the mines and deposits of crude oil and their related substances in and under the four parcels of land for the
space of 50 years, for a consideration expressed to be compounded of rent, computed on the basis of $10
per acre of surface area, and royalty.
H subsequently assigned his interest in the lease to S Co, an oil mining company, while the reversion in the
lease became severed as a result of various transfers made by the original co-reversioners and their
successors in title, and the sub-division of one of the parcels into two, so that the original four parcels of land
became five parcels. In the final result the ownership of four out of the five parcels vested in one or other of
the respondents and the ownership of the fifth parcel vested in the appellants. It was agreed that the
effective date of the severance of the reversion was 20 May 1936. All the transfers were made subject to
the 1934 mining lease and the respondents and appellants were all co-reversioners.
The operative part of the lease was followed by five clauses. Of these, clause 5 included a proviso which
stipulated that the expressions The Lessors and The Lessee should, when the context so allowed,
include their personal representatives and assigns and all other persons deriving title under them
respectively.

Clause 2 prescribed for the payment of the fixed yearly rent and also of various royalties in cash computed
at fixed rates on the quantity of oil and by-products won. It was subject to a number of provisos, the effect of
which was to make the yearly rent a fixed minimum consideration payable in any event, to which there
should be added only such royalties (if any) as accrued over and above that figure.
It was conceded that upon severance of the reversion, the fixed yearly rent reserved was apportionable
between the co-reversioners according to the surface acreage of their holdings, and indeed up to 1947
before any oil had been won the rent had been paid on that basis. But in 1947 a well drilled by S Co on the
appellants parcel came into production and a dispute arose over the royalty payable in respect of the oil so
won. The appellants contended that the royalty was due to them in toto, but the respondents claimed that it
fell to be apportioned between all the co-reversioners in the same manner as the fixed yearly rent.
The respondents accordingly took out an originating summons against the appellants, joining S Co as
defendants, to determine whether the royalties payable in respect of the oil and by-products won on the
appellants parcel were apportionable between the co-reversioners, and if so in what proportions; and asking
for an order that S Co pay the royalties in accordance with such determination.
The Chambers Court held that the royalty payable was apportionable and must be shared by the coreversioners according to the values of their respective holdings at the time of the severance of the
reversion, and referred the matter back to Chambers with a direction that an enquiry be made to ascertain
those values. From this decision the appellants appealed.
Held:(i) Upon its true interpretation the agreement entered into between the original lessors and lessee was
a lease, and not a sale, of the oil and associated minerals specified underlying the surface of the lessors
land.
(ii) The lease was an entire lease and remained so notwithstanding the severance of the reversion.
(iii) The consideration reserved in the lease, consisting as it did of a fixed yearly rent plus certain royalties on
the oil won, was in law a true rent.
(iv) Upon severance of the reversion the whole of that consideration fell to be apportioned among the coreversioners according to the relative values of their reversions at the time of severance.
(v) As regards that portion of the consideration which consisted of the fixed

436
yearly rent, inasmuch as the fixed yearly rent itself was expressed in the lease to be assessed at the rate of
$10 per acre, the relative values of the reversions should be computed according to the relative areas of the
parcels comprised in the reversions.
(vi) As regards that portion of the consideration which comprised the royalties payable, while the true value
of each reversion lay in the value of the oil and by-products lying underneath the surface of the parcel
comprised in each reversion, inasmuch as these substances were fugitive and there was no evidence to
show how they were distributed beneath the various parcels, it could only be assumed that that distribution
was uniform and even at all times, and, consequently, the relative values of the reversions should be
computed according to the relative areas of the surface covering the oil and by-products comprised in the
reversions, that is to say according to the relative areas of the parcels comprised in the reversions.
Appeal dismissed Order varied.
Cases referred to
Salts v Battersby [1910] 2 KB 155, 79 LJKB 937, 102 LT 730, 31 Digest (Repl) 287, 4220
Gowan v Christie (1873), LR 2 Sc & Div 273, HL, 34 Digest 671, 673
Coltness Iron Co v Black (1881), 6 App Cas 315, 51 LJQB 626, 45 LT 145, 46 JP 20, 29 WR 717, 1 Tax Cas
287, HL, 28 Digest (Repl) 143, 546
Munro v Didcott [1911] AC 140, 80 LJPC 65, 103 LT 682, 27 TLR 176, PC
R v Westbrook, R v Everist (1847), 10 QB 178, 2 New Mag Cas 131, 2 New Sess Cas 599, 16 LJMC 87, 9
LTOS 21, 11 JP 277, 11 Jur 515, 116 ER 69, 31 Digest (Repl) 236, 3704
Danniel v Gracie (1844), 6 QB 145, 13 LJQB 309, 8 Jur 708, 115 ER 56, 31 Digest (Repl) 235, 3703

Barrs v Lea (1864), 3 New Rep 635, 33 LJ Ch 437, 10 LT 567, 10 Jur NS 996, 12 WR 525, 31 Digest (Repl)
236, 3705
Mitchell v Mosley [1914] 1 Ch 438, 83 LJ Ch 135, 109 LT 648, 30 TLR 29, 58 Sol Jo 118, CA, 34 Digest 675,
709
Re Aldams Settled Estate [1902] 2 Ch 46, 71 LJ Ch 552, 86 LT 510, 50 WR 500, 18 TLR 579, 46 Sol Jo
482, CA, 34 Digest 642, 397
Brigstocke v Brigstocke (1878), 8 Ch D 357, 47 LJ Ch 817, 38 LT 760, 26 WR 761, 34 Digest 629, 262
Greville-Nugent v Mackenzie [1900] AC 83, 69 LJPC 1, 81 LT 793, 16 TLR 43, HL, 34 Digest 611, 92
Wettengel v Gormley (1894), (Pennsylvania)
Campbell v Lynch (1917), (Pennsylvania)
Collins v Harding (1597), as reported in Cro Eliz 606, 78 ER 848, 31 Digest (Repl) 245, 3800
Hartley v Maddocks [1899] 2 Ch 199, 68 LJ Ch 496, 80 LT 755, 47 WR 573, 43 Sol Jo 531, 39 Digest 171,
623
Malolm Butt QC and Eric Butt (instructed by Fitzwilliam Stone Alcazar) for the appellants
Guy OReilly QC and Tajmool Hosein (instructed by J Anthony Le Blance) for the respondents
J D Sellier & Co (for Shell Trinidad Ltd)
CHAMBERS COURT
Applications
Applications by Teeluckdhari Jagessar and others by originating summons to determine certain questions
and grant relief consequent thereupon relating to the construction and effect of the provisions of a mining
lease. The facts have been summarised in the headnote and are also stated in the judgment of the Full
Court on the appeal. The judgment of the Chambers Court is reported primarily on the question of the
nature of rent and royalty and the method of their apportionment upon severance of the reversion.

437
GOMES J. The specific questions to be determined on the summons are whether the minimum rent and the
royalties payable under the mining lease are apportionable among the reversioners and, if so, to whom and
on what basis or in what proportions are they apportionable? In the first place it is necessary to examine the
terms of the mining lease, in so far as they bear or may touch on the questions raised. [His Lordship then
related some of the terms of the lease and continued:]
With regard to the minimum rent payable by the lessees it was not denied that it was apportionable but
the basis on which it was apportionable was debated, counsel for the plaintiffs contending that it was
apportionable on the basis of value and counsel for the defendants on the basis of acreage. It seems clear
from the authorities that the ordinary rule is that rent is to be apportioned not according to quantity or
acreage but to quality or value: Woodfalls Landlord And Tenant, 24th Edn, p 306; Salts v Battersby ([1910] 2
KB 155, 79 LJKB 937, 102 LT 730, 31 Digest (Repl) 287, 4220); and the relevant time is at the time of
severance (vide idem).
The lease, however, after stipulating that the yearly rent shall be $989.10, goes on to say which sum
represents the aggregate rent payable hereunder when computed at the rate of ten dollars for each acre. I
think this computation of rent by the acre is just as binding on the reversioners vis-a-vis each other as it was
between the lessor and the lessee and excludes the rule which would otherwise have been applicable. I
consider, therefore, that the rent should be apportioned among the reversioners according to acreage at the
date of severance, ie 20 May 1936.
With regard to the royalty payable, counsel for the plaintiffs submitted that it is apportionable and should
be apportioned in the same way as rent, but according to value and not acreage. In support of the
submission it was contended that the royalty payable under the lease is a true rent; that it is a true rent both
at common law and by virtue of the definition of rent in the Conveyancing and Law of Property Ordinance,
Cap 27, No 12 [T]; that the rent reserved is a single or entire rent and it issues out of each and every part of
the hereditaments comprised in the lease and, as the definition of rent includes royalty, royalty must likewise
be deemed to issue out of each and every part of the reversionary estate in the minerals. (At a later stage I
shall deal with the submission based on the Ordinance.)
On the other hand counsel for the defendants maintained that, subject to the rights of the lessee, each
owner by virtue of his conveyance owns absolutely the minerals contained in his portion of the land and that
the legal conception of the nature of a mining lease, that what is taken away by the lessee is part of the
substance of the property or estate itself and that what is received by way of royalty is received for the
purchase of it, makes it clear that the benefits under the lease can attach only to those parts of the reversion
to which they are attracted; put in another way, it was submitted that it was fundamental and basic that if A
Contracts to pay for whatever he takes away from ten acres of land, being a part of the substance of the

land itself, and he takes away substance from one acre of the land of which B is the owner, then he must
pay B and B alone, because what he has taken away belongs to B alone, as there is nothing in the
conveyances or in the general law which gives a community interest to the parties in the estate or in the
entitlements derived from the estate of the other of them.
In reply to this argument, apart from what was submitted, I understand counsel for the plaintiffs to
contend that the transfers of the severed portions of the land are all subject to the mining lease and, as the
lease is an entire lease and as the transfers did not give to the transferees the right to take the royalty in
respect of oil produced from any transferred portion to the exclusion of the transferees of the other portions,
accordingly on severance each transferee became entitled to an apportioned part of the royalty.

438
At the hearing a mining lease was described by a variety of expressions: it was described as a special
type of document, a hybrid lease and as no lease at all but really an agreement to sell, or a sale of, the
substances demised. Counsel for the defendants referred to the following passage from the judgment of
Lord Cairns in the case of Gowan v Christie ((1873), LR 2 Sc & Div 273, HL, 34 Digest 671, 673) ((1873), LR
2 Sc & Div at p 283) which was cited or referred to in Coltness Iron Co v Black ((1881), 6 App Cas 315, 51
LJQB 626, 45 LT 145, 46 JP 20, 29 WR 717, 1 Tax Cas 287, HL, 28 Digest (Repl) 143, 546) ((1881), 6 App
Cas at p 335) and Munro v Didcott ([1911] AC 140, 80 LJPC 65, 103 LT 682, 27 TLR 176, PC) ([1911] AC at
p 148):
Although we speak of a mineral lease, or a lease of mines, the contract is not, in reality, a lease at
all in the sense in which we speak of an agricultural lease. There is no fruit; that is to say there is no
increase, there is no sowing or reaping in the ordinary sense of the term; and there are no periodical
harvests. What we call a mineral lease is really, when properly considered, a sale out and out of a
portion of land. It is liberty given to a particular individual, for a specific length of time, to go into and
under the land, and to get certain things there if he can find them, and to take them away, just as if he
had bought so much of the soil;
and the nature of the liberty referred to by Lord Cairns is more extensively described in 22 Halsburys Laws
Of England, 2nd Edn, at p 613, para 1328, as follows:
A right to work mines and carry away the minerals won is more than a mere licence. It is a profit a
prendre lying in grant which may be limited either for freehold or chattel interests and the estates so
created may be devised, inherited, or assigned. It does not convey any estate in the land or in the
mines except the parts severed which become the property of the grantee.
It was submitted by counsel for the defendants that the true conception of the nature of a mining lease
as stated by Lord Cairns is vital to the case.
In support of his submission that royalty at common law is a true rent counsel for the plaintiffs referred
to the following passage and cases in 20 Halsburys Laws of England, 2nd Edn, at p 158, para 170, ie.:
Rent does not necessarily represent the annual produce of the land; a royalty, notwithstanding that
it is reserved in respect of substances which are taken from the land so as to cause its permanent
diminution, is a true rent.
R v Westbrook, R v Everist ((1847), 10 QB 178, 2 New Mag Cas 131, 2 New Sess Cas 599, 16 LJMC
87, 9 LTOS 21, 11 JP 277, 11 Jur 515, 116 ER 69, 31 Digest (Repl) 236, 3704); Daniel v Gracie ((1844), 6
QB 145, 13 LJQB 309, 8 Jur 708, 115 ER 56, 31 Digest (Repl) 235, 3703); and Barrs v Lea ((1864), 3 New
Rep 635, 33 LJ Ch 437, 10 LT 567, 10 Jur NS 996, 12 WR 525, 31 Digest (Repl) 236, 3705).
In Everists case (R v Westbrook, R v Everist (1847), 10 QB 178, 2 New Mag Cas 131, 2 New Sess Cas
599, 16 LJMC 87, 9 LTOS 21, 11 JP 277, 11 Jur 515, 116 ER 69, 31 Digest (Repl) 236, 3704) the
memorandum of agreement provided for payment at the rate of a stated amount for every thousand bricks
made and it was submitted that it was altogether wrong in principle to consider the royalty as rent, but Lord
Denman CJ, considered that it was in substance a rent. I shall refer a little later to a certain passage in his
judgment.
In Barrs v Lea ((1864), 3 New Rep 635, 33 LJ Ch 437, 10 LT 567, 10 Jur NS 996, 12 WR 525, 31 Digest
(Repl) 236, 3705), in addition to fixed surface rent there was payable an additional sum of 500 called
consideration money for every additional acre (beyond one) of mine worked, gotten and raised, with a
proviso that not more than 1,000 should be paid in any one year and that payment of consideration money
should cease when 5,000 had been paid. It was held that payments of the consideration money were in
the nature of rent.
In Mitchell v Mosley ([1914] 1 Ch 438, 83 LJ Ch 135, 109 LT 648, 30 TLR 29, 58 Sol Jo 118, CA, 34
Digest 675, 709) the mining lease stipulated for the payment of a surface rent and an additional half-yearly

sum of 50 for all coal or cannel raised or got by ten getters and proportionately after that rate for any
additional number of getters employed beyond ten. After expressing doubt whether the 50 payment was
rent or royalty, Eve J, held that it was in the nature of a dead rent as, if it were held to be royalty, it would be
a payment for coal gotten as and when it was in fact gotten and so it would leave it open to the lessee to
escape all payment to the plaintiff by constantly employing less than ten getters.

439
[His Lordship then described the provisions of the lease relating to the payment of rent and royalty and
continued:]
It seems to me that, as specific surface rent is excluded, whatever payments the lessee has to make,
whether it be one payment or two payments or whether it be $X or $X plus or minus $Y, all the payments are
for the same thing, whatever that thing may be. As there is no obligation on the lessee to drill for oil it may
rightly be said that the object of fixing a minimum payment is, on the one hand, to prevent the lessee from
doing nothing, and, on the other, to ensure that the lessor gets something (Re Aldams Settled Estate ([1902]
2 Ch 46, 71 LJ Ch 552, 86 LT 510, 50 WR 500, 18 TLR 579, 46 Sol Jo 482, CA, 34 Digest 642, 397)); but
the moment the former situation ceases by the commencement of production of oil that consideration
disappears and the payment thereafter becomes an entire payment. It was no doubt for that reason that
counsel for the plaintiffs submitted that the moment royalty becomes payable the fixed rent becomes in fact
a pre-payment of royalty and is brought into account as such.
The next question that arises iswhat is this money paid for? Is it paid for the fruits of the soil or for part
of the proceeds of the soil or for part of the land itself? American authorities apart, I know of no authority
and none was cited that specifically decided that question in the case of oil where there has been a
severance of the reversion. Counsel for the defendants considered that the decision in Mitchell v Mosley
([1914] 1 Ch 438, 83 LJ Ch 135, 109 LT 648, 30 TLR 29, 58 Sol Jo 118, CA, 34 Digest 675, 709) is a case in
point. I do not think so because (although it was a case dealing with coal and not oil) the specific question
was not argued nor did it arise in the Court of Appeal, although EVE, J, did say that if the payment was for
coal as and when it was gotten he would not have regarded it as rent, but he considered the question from
the point of view of the application or non-application of the Real Property Limitation Act, 1833 [UK].
There is a line of cases to which I think I should make reference, for the law is well settled in regard to
them. They are the cases which decide that a tenant for life of an estate on which there are open mines is
entitled to the royalties payable in respect of the mines gotten. One of them is the case of Brigstocke v
Brigstocke ((1878), 8 Ch D 357, 47 LJ Ch 817, 38 LT 760, 26 WR 761, 34 Digest 629, 262), where Jessel, M
R, said ((1878), 8 Ch at p 363):
The tenant for life of an estate on which there are open mines receives the royalties payable in respect
of the minerals gotten, though they are really instalments of the purchase-money of part of the inheritance.
In most cases fines are merely a mode of securing rent, and rents of two kinds, an annual rent and a rent
payable at more distant intervals. A certain sum payable at certain intervals is as much rent as if it were an
annual sum.
Then there is the case of Greville-Nugent v Mackenzie ([1900] AC 83, 69 LJPC 1, 81 LT 793, 16 TLR
43, HL, 34 Digest 611, 92), where Lord Halsbury LC ([1900] AC at pp 87-88) said:
Now, whatever might have been the case originally, and I am not prepared to defend the logic of
some of the reasons given in the earlier decisions, at all events for obvious reasonsand I think if the
courts had the power by law to do it they were most useful and cogent reasonsthey have treated in
this class of case the produce of the soil as including that which is in truth what Lord Cairns has
described as the substance of the soil itself. In speaking of coal, for instance, we talk constantly about
the rent and royalty of coal. The phrases are figurative: you pay rent in one sense it is true; but rent
generally has been understood to be a consumption or taking away of the soil . . . the question is
whether the tenant for life is entitled to what, in one sense, is called the usufruct, but I suppose in more
strict language would be called part of the soil itself...
In dealing with the same topic Macswinney On Mines, Quarries And Minerals, 5th Edn, at p 44, deals
briefly with the situation that confronted Lord Halsbury, thus:

440
In strictness, this position may be thought to be an anomaly. Minerals are not like annual fruits.
When once taken away they do not replace themselves. The position was, however, well recognised
in the Roman jurisprudence, and in England as far back at the reign of Edward III, and in Scotland as
far back as the year 1503; and the original ground of it is the presumed will and intention of the settlor.

I do not refer to this line of cases as being in point but I do so because I think they show that if the
conception that an oil lease really amounts to a sale of portions of the land itself, and therefore a sale of real
property and therefore a sale of a capital asset, is a criterion, it is not an invariable one or a cardinal rule.
The question on which I have been asked to give my view has often been before the courts of the
United States of America. Counsel referred to two text-books on the subject as reports of decisions were
not available. The decisions in the numerous cases, however, show that there is a considerable conflict of
authority on the matter, although the balance of opinion favours the contention of the defendants in this
case. (Summers On Oil And Gas Leases, Vol 3, Perm Edn, pp 517 and 530). The question was raised
there for the first time in the year 1894 in the case of Wettengel v Gormley ((1894), (Pennsylvania)), a
Pennsylvania case, the decision in which conforms with the minority view (Summers, pp 519-520). In that
case an owner granted an oil lease in three adjacent farms and subsequently devised a farm to each of his
three sons. On the production of oil from one of the farms after his death its owner claimed all the royalties
payable. At first instance the court held that the rents and royalties should be divided among the three
devisees, in the proportion that the area of each sub-divided tract bore to the area of the entire tract, for the
reason that, because of the non-divisibility of the lease and the fugitive nature of oil and gas, a rule which
limited a devisee of one of the tracts to royalties arising upon production upon that particular tract might
result in hardship to the other owners of the sub-divided tracts; and, further, that a lessor cannot by
subdivision of the demised land into separate tracts place the additional burden upon the lessee of
developing such tracts as units or separate leases. This latter consideration did not arise in the case before
me as I understood it to be common ground that the lessee was entitled to operate the lease as an entirety.
On one of the appeals the court held that the effect of the lease was to create in the lessor an estate
independent of the fee in the land, that is, an estate in the prospective rents and royalties, and that such
interest did not pass to the devisees by the will, but descended as intestate personal property, and therefore
passed to the three devisees in undivided equal parts.
In a later case in the year 1917, Campbell v Lynch ((1917), (Pennsylvania)), the decision of the court
was the same, Poffenbarger Js opinion being, inter alia, that, after severance of the oil, it is personal
property in the hands of the lessee, the royalty payable is rent in kind for occupation, use and operation of
the lessors mine, and it is susceptible of division and disposition, being not the oil in place, but the usufruct,
the rent return for the oil mine in the land (Summers, p 522, note 13).
In another case that reasoning was criticised as a laboured effort in support of two conflicting theories,
for it demonstrates at one and the same time that rent can only issue out of the land and not out of an
incorporeal hereditament which the separate entity or estate characterised as royalty is said to be. In
answer to that criticism, Poffenbager J, said that the devisees took all the right, title and interest in the land
(including the oil in place) but that did not include the royalty which the devisees, however, got as a legal
consequence and result of the acquisition of the title to the land and oil just as a man, by legal

441
consequence, gets the interest on a debt past due in the absence of a contract stipulating for it
(Summers, p 524, note 21).
In commenting on the Pennsylvania case, Glassmire On Oil And Gas Leases And Royalties, 2nd Edn,
at p 301, says:
The general rule is that a sale of any part of the leased land, or the mineral rights thereunder,
carries with it the rentals and royalties accruing from the particular sub-division sold. Yet in
Pennsylvania it has been held that subsequent royalty sales follow the prior lease regarded as an
entirety; that such grantee obtains an undivided interest in the royalty under the whole lease, and not a
separate royalty interest under the sub-divided tract. But this holding apparently relied on the theory of
apportionment of rents under an agricultural lease, as being a part of the personal assets assigned.
For the court in that case said: The lease is, in its legal effect, a sale of the oil, for the removal of which
the surface and sub-surface were subjected to the necessary servitudes;. . . the vagrant character of
the mineral and the porous sand-rock in whcih it is found . . . have led to its general adoption. For
this reason an oil lease partakes of the character of a lease for general tillage, rather than of a lease
for mining and quarrying the solid minerals.
It was submitted on behalf of the plaintiffs that those decisions of the American courts which support the
case for the defendants, i e the Ohio, Indiana and Arkansas cases, are based on a conception which is alien
to British law in that, inter alia, they treat royalty as oil in place (Summers, p 522, note 13). If by royalty is
oil in place is meant that royalty is the purchase price for the oil then I do not think it can be said that that
view is wholly foreign to Lord Cairns conception or suggestion.
On the other hand, counsel for the defendants stated that Lord Cairnss description of a mining lease
has never been challenged. While that may be so, I think it is equally true to say that what Lord Cairns said
was never used in any case in the British Commonwealth as the criterion for deciding the point on which my
view is asked, for as far as I am aware no such case has arisen. While Lord Cairns said that What we call

a mineral lease is really, when properly considered, a sale out and out of a portion of the land he
nevertheless immediately went on to say:
It is liberty given to a particular individual, for a specific length of time, to go into and under the
land, and to get certain things there if he can find them, and to take them away, just as if he had
bought so much of the soil.
In view of this I do not think it can be said that Lord Cairns meant that the deed amounted to a deed of
purchase and sale of portion of the lands, for the whole text must be considered, and that I believe is what
was done in the case of Munro v Didcott ([1911] AC 140, 80 LJPC 65, 103 LT 682, 27 TLR 176, PC). In that
case the Judicial Committee of the Privy Council were asked to determine whether a certain mining lease
(which was very similar in its terms to the lease in Gowan v Christie ((1873), LR 2 Sc & Div 273, HL, 34
Digest 671, 673)) was a lease within the meaning of a certain statute of Natal. Lord Atkinson, in expressing
the opinion of the Privy Council and after quoting Lord Cairnss pronouncement in full, said: This no doubt
may be in reality the true nature of the transaction in the instrument of 28th May 1898, and later he said:
It is, in their Lordships opinion, clear that the indenture of 28th May 1898, must either be a lease
or a deed of purchase and sale of portion of these lands, and that the rights it confers are not merely
incorporeal rights.
and their Lordships then concluded that it was the former, that is to say, a lease, and not a deed of purchase
and sale.
It is for this reason that it seems to me that any similar instrument must be one thing or the other: if the
stand is taken that it is a sale out and out of a

442
portion of the land then both logically and legally it should be considered a deed of sale and purchase,
and not a lease. Indeed I find it difficult in relation to the mining or getting of mineral oil to conceive how any
instrument can be drafted which could be regarded solely as a deed of sale and purchase, for such an
operation or occupation presupposes a lease of some description. I do not think that Lord Cairns said
merely that a mining lease is really an out and out sale of a portion of the land as in my view he himself
qualified that statement, for he immediately, as I have said before, spoke of the liberty given to the individual
to go on the land and to get certain things there if he can find them and to take them away-and he concludes
with the important words just as if he had bought so much of the soil: Lord Cairns did not say the
individual was at liberty to take them away because he had bought them but just as if he had bought
them.
The argument on behalf of the defendants is no doubt a strong and attractive one. It was said that in
considering the rights of the parties the conveyances alone must be looked at, and counsel referred to a
passage in the judgment of Cozens-Hardy MR, in Mitchell v Mosley ([1914] 1 Ch 438, 83 LJ Ch 135, 109 LT
648, 30 TLR 29, 58 Sol Jo 118, CA, 34 Digest 675, 709), where he said ((1914), 83 LJ Ch at p 140):
In my opinion, we should be going contrary to the perfectly well settled principles of law if we
allowed for a moment any doubt to arise on the construction of these two conveyances, at which alone
we must look. We can have no doubt as to their meaning and effect. It seems to me quite clear that
they are conveyances of everythingconveyances of the land, which includes (unless you can find
something to the contrary) everything down to the centre of the earth.
The Master of the Rolls was, however, considering the corpus of what the conveyances passed. But a
little later he said (ibid):
It is then said the parties never contemplated the apportionment of this rent. I dare say they did
not, but the law provides for that. As a matter of law, when the reversion is severed there are rights
which arise between the owners of the severed parts. The one who receives the whole rent is liable to
be sued by the other for money had and received in respect of his proper part of the rent.
The rent is the rent reserved by the lease and where there is a whole or entire rent I think it has to be
considered as a matter of law what impact that reservation has on the rights the parties have by virtue of
their conveyances; the answer is that the impact causes the rent to be shared. It seems to follow theefore
that, in considering the question before me, the lease cannot be ignored.
In my view if, where there is an entire rent, the effect is that it must be shared, then the result must be
the same where there is an entire royalty, unless there is any supervening obstacle.
Although I said above that, apart from decisions in American courts, there does not appear to be any
direct authority in poin, I nevertheless consider that the case of R v Westbrook, R v Everist ((1847), 10 QB

178, 2 New Mag Cas 131, 2 New Sess Cas 599, 16 LJMC 87, 9 LTOS 21, 11 JP 277, 11 Jur 515, 116 ER
69, 31 Digest (Repl) 236, 3704), if not in point, affords much guidance on the question. In that case, as I
have said before, the lessee had covenanted to pay a stated amount for every thousand bricks made out of
the land and it was submitted that the obstacle in the way was that it was wrong in principle to consider the
royalty payable as rent. In his judgment Lord Denman CJ, said ((1847), 11 JP at p 279):
We come, then, to the bare objection that the royalty is paid, not for the renewing produce of the
land, but for several portions of the land itself, mixed up with foreign matter... When the case is thus
laid bare, there is no distinction between it and that of the lessee of coal mines, of clay pits, of

443
slate quarries: in all these the occupation is only valuable by the removal of portions of the soil: and
whether the money is paid for in money or kind, is fixed beforehand by the contract, or measured after
wards by actual produce, it is equally in substance a rent: it is the compensation which the occupier
pays the landlord for that species of occupation which the contract between them allows. This would
not admit of an argument in an agricultural lease, where the tenant was to pay a certain proportion of
the produce: that would be admitted to be in all respects a rent service, with every incident to such a
rent; and, in Daniel v Gracie ((1844), 6 QB 145, 13 LJQB 309, 8 Jur 708, 115 ER 56, 31 Digest (Repl)
235, 3703) we held the same with regard to a marl pit, and brick mine, as the parties termed it, where
the render was of so much per cubic yard of the marl dug and so much per thousand of the bricks
made.
It seems to me that two important points emerge from that judgment: firstly, the bare objection spoken
of by Lord Denman refers to the same feature about a mining lease that Lord Cairns spoke of twenty-nine
years later; and secondly, the species of occupation referred to is not far removed, if at all, from the liberty
to the lessee which Lord Cairns described, and the character of a lease for general tillage which was the
description of an oil lease by one of the Pennsylvania courts.
In my view it cannot be said that the document in this case amounts to no more than a deed of sale and
purchase. It is a lease and must be construed as an entirety and an entity and the lessee is entitled to
operate it as such. It is not merely a licence to go on the land and take and carry away objects in situ. The
lessee has to occupy himself, perhaps to no avail, in exploiting and exploring the sub-strata of the land: what
he does fulfils the exhaustive statutory definition of a mining lease.
For these reasons I hold that the payment in the lease reserved as royalty is an entire payment and is at
common law a true rent or in the nature of rent and is apportionable.
In this connection I would like to say that, on account of the great respect that I have for the majority
opinion in the other jurisdiction to which I have referred, I have not arrived at my conclusion without doubt
and that it might well have been otherwise if the reports expressing those opinions had been available to
me, so in case I am wrong in the view I have just expressed and as the matter is of great importance to the
parties and the answers to the questions raised will no doubt be given final determination elsewhere, I will
also give my views on the other submission based on the provisions of the Ordinance.
By s 2 of Cap 27, No 12 [T], the term rent is defined as including royalty and the provisions of sub-s
(1) of s 66 are as follows:
Rent reserved by a lease, and the benefit of every covenant or provision therein contained, having
reference to the subject-matter thereof, and on the lessees part to be observed and performed, and
every condition of re-entry and other condition therein contained, shall be annexed and incident to and
shall go with the reversionary estate in the land, or in any part thereof, immediately expectant on the
term granted by the lease, notwithstanding severance of that reversionary estate, and without
prejudice to any liability affecting a covenantor or his estate.
This sub-section is in identical terms with sub-s (1) of s 141 of the Law of Property Act, 1925 [UK],
which replaced s 1 of the 1540 statute of 32 Hen 8, Cap 34, s 10 (1), of the Conveyancing Act, 1881 [UK],
and s 2 (1) of the Conveyancing Act, 1911 [UK] (see 20 Halsburys Laws, 2nd Edn, p 369, note (t)).
The argument of counsel for the plaintiffs, as I understand it, is that as by the provisions of s 66 of the
Ordinance rent is annexed and incident to and goes

444
with the reversionary estate, the legal consequence of that is the same as it is at common law, that is,
that the rent is to be apportioned and, as rent includes royalty, the result is the same in the case of the
royalty.
On the other hand counsel for the defendants contended that ss 64, 65 and 66 of the Ordinance must
be read together and that the effect of sub-s (1) of s 66 is that where there is and assignment of a lease the
rent and royalty pass to the assignee and that any such rent or royalty as are incidental or belonging to any

part of the reversion go with that part, so that where, as in this case, royalty is derived from only one of the
severed parts, it belongs to the owner of that part.
At common law the benefit of the lessees covenants did not run with the reversion, except in the case
of covenants for payment of rent, or the rendering of services in the nature of rent, such as suit to the
lessors mill, but now, if they come within the provisions of s 66 (1) of the Ordinance, they do (20 Halsburys
Laws, 2nd Edn, p 369, para 448). The statutory provision with respect to rent is therefore declaratory of the
common law rule.
The legal consequence of saying that rent shall be annexed and incident to and shall go with the
reversionary estate in the land, notwithstanding severance of that estate, is that the rent shall follow the land
and so different portions of it may become payable to different persons, and the reason why that comes
about is because, where there is a whole rent, it issues out of each and every part of the land and the holder
of each portion gets the share to which he is entitled.
In dealing with this question I think the important thing to consider is the situation at the time of
severance when, as was said by the Master of the Rolls in Mitchell v Mosley ([1914] 1 Ch 438, 83 LJ Ch
135, 109 LT 648, 30 TLR 29, 58 Sol Jo 118, CA, 34 Digest 675, 709), there are rights which arise, as a
matter of law, between the owners of the severed parts. Counsel for the plaintiffs submitted that at the time
of severance in this case each assignee received, or was entitled to receive, a share in the rent, and that the
share he was entitled to receive was fixed as at that date and cannot be altered, and that, as rent includes
royalty, the position is the same with respect to royalty, although royalty had not then accrued, as oil was not
then in production. I agree with that submission because that is how I construe the section.
It must be presumed that the legislature was fully aware that royalty as a general rule is not payable
unless and until the mineral is won, but there is nothing in the sub-section which says or indicates that, in the
case of royalty, the sub-section shall be effective only on that contingency arisingI consider that, whatever
the fact may be and whether royalty may be considered as payment for portions of the land, the sub-section
for the purpose it is designed to effect has placed royalty on the same footing as rent.
By sub-s (2) of s 66 rent or royalty under sub-s (1) may be recovered by the person from time to time
entitled to the income of the whole or any part of the land.
I do not consider that the defendants are entitled to the whole of the income from the royalty because
that was not their entitlement at the time of severance: at that time they were entitled to no more than any of
the other assignees, that is to say, to whatever their shares were. I agree that the conveyances entitled the
defendants to the property in the oil in situ, but for the reasons I have already given I do not consider this
royalty as oil in place or the purchase price for the oil.
It is to be observed that sub-s (2) of s 66 provides for the recovery of income from the land and, as rent
includes royalty, the sub-section certainly envisages that royalty payable by virtue of a lease is, or may be,
income and I should imagine that a party who brought an action under the sub-section would sue, not as a
vendor to recover the purchase price for the sale of a capital asset, but as a reversioner to recover his
income, or share of income, from the land.

445
I therefore hold that the royalty payable is apportionable and must be shared by the co-reversioners
according to the value of their respective holdings at the time of severance. I therefore refer the matter back
to Chambers with a direction than an enquiry be made to ascertain the values of the holdings of the
reversioners according to their conveyances on 20 May 1936, the agreed date of severance, with liberty to
apply on any matter arising on that direction. I make no order as to costs as between the parties except the
defendant company, whose costs are to be taxed and paid out of monies payable by the company to the
parties under the mining lease. Leave to write up order.
COURT OF APPEAL
Appeal
Appeal by Radia and others against the above decision of the Chambers Court (Gomes J).
Malcolm Butt QC and Eric Butt (instructed by Fitzwilliam Stone Alcazar) for the appellants
Guy OReilly QC and Tajmool Hosein (instructed by J Anthony Le Blanc J D Sellier & Co) for the
respondents
Cur adv vult
CAMACHO J delivered the judgment of the court: This is an appeal from a decision of Gomes J, given in
open court on the hearing in Chambers of an originating summons brought by the respondents asking for
the determination of certain questions relating to the meaning and effect of the provisions of a mining lease

and for relief consequent thereupon. The facts of the case and its history are clearly set out in the judgment
of the learned judge and we adopt his language substantially in restating it here.
In the year 1934 four joint tenants of four contiguous parcels of land executed a memorandum of lease
whereby they purported to lease to one H A HamelSmith, inter alia, all the mines and deposits of crude oil
and their related substances in and under the four parcels of land for the space of 50 years for a
consideration expressed to be compounded of rent and royalty. Mr HamelSmiths interest in the lease was
subsequently assigned by him to an oil mining company (who were made defendants to the summons) now
known as Shell Trinidad, in whom the lease is still vested.
In the interim period various transfers were made by the co-reversioners and their successors in title
and one of the parcels was divided in two so that the four parcels of land became five parcels. In the net
result, and at the time the originating summons was taken out, the first named respondent became entitled
to a parcel comprising 22 acres, the second and third named respondents became entitled to three parcels
aggregating 54 acres, 2 roods and 29 perches, and the two appellants became entitled to the fifth parcel
containing 22 acres, 37 perches, the total acreage of the five parcels thus comprising 98 acres, 3 roods and
26 perches. All the transfers that were made, were made subject to the mining lease, and the respondents
and the appellants are all co-reversioners.
It is not clear when the company commenced drilling operations but that is not material. What is
material is, that in the year 1947 a well which had been drilled on the parcel of land belonging to the two
appellants came into production, and it is the production of oil from that well that has given rise to the
present questions, the dispute in regard to which has caused the company to withhold payments of rents
and royalties.
The issue that was before the learned judge and is now before us may be shortly stated thus: In the
circumstances which appertain to this case, are the

446
rents and royalties payable by the lessee under this lease apportionable between the appellants and the
respondents as co-reversioners, and if so, in what-manner should they be apportioned?
The judges finding on this issue was that the rent should be apportioned among the co-reversioners
according to the acreage of their holdings at the date of severance; and that the royalty payable was
apportionable and must be shared by the co-reversioners according to the value of their respective holdings
at the date of severance. It was agreed that the effective date of severance as it concerned this case was
20 May 1936. The judge referred the matter back to Chambers with a direction that enquiry be made to
ascertain the values of the co-reversioners holdings on 20 May 1936.
In our view the answer to the issue and related questions raised by the originating summons falls to be
determined primarily from the terms of the instrument giving rise to the contractual relations between the
parties, that is to say the memorandum of lease itself. Only if this instrument is silent on the subject, or if its
terms are contrary to law, or present problems of interpretation which do not admit of solution within its own
framework, will it be necessary to go outside it and have recourse to the provisions of common law and
statute.
The first step then is to examine the memorandum of lease. It is a lengthy document and may for
convenience be considered in two main parts: the first or operative part, comprising the premises, the
habendum and the reddendum; and the second part which sets out the covenants and other terms in the
form of five clauses.
The operative part of the lease is relatively short and may be conveniently paraphrased as follows:
We . . . the lessors being registered as the proprietors of an estate in fee simple in all that piece
or parcel of land (hereinafter called the demised lands)... do hereby lease to... the lessee all the
mines, beds, veins, seams and deposits of crude oil petroleum and other mineral oils and all other
petroliferous and bituminous substances and their congeners including natural gas asphalt and related
hydrocarbons (hereinafter called the demised substances) of in and under the demised lands... for...
fifty years commencing from the twelfth day of September [1938] at the yearly rent of [$989.10]
computed at the rate of ten dollars for each acre of the demised lands...payable in advance on the 1st
day of January, and the 1st day of July in each and every year the sum of [$989.10] in full satisfaction
of the rent to the twelfth day of September [1934] having been paid (and acknowledged) subject to the
following covenants, conditions and stipulations...
There then follow the five clauses: first, a clause defining the working rights of the lessee; second, a
clause setting out in detail the rents and royalties payable under the lease; third, the lessees covenants
commencing with the covenant to pay rents and royalties; fourth, the lessors covenants; and fifth, a number
of important provisos.
The very last of these provisos in clause 5proviso (l)stipulates that the expressions the Lessors and
The Lessee shall, when the context allows, include their personal representatives and assigns and all
other persons deriving title under them respectively.

No special provision is made in the memorandum as to how the rents and royalties should be
apportioned (if at all) upon severance of the reversion, though the possibility of such severance can hardly
have escaped the attention of the framers of the document. It is not disputed, however, that rent is
apportionable upon severance of the reversion of a lease whether this takes place by the act of the parties
or by act of law; and that on severance the rent is annexed to the severed portions by statute. (See Collins
v Harding ((1597), as reported in Cro Eliz 606, 78 ER 848, 31 Digest (Repl) 245, 3800);

447
Hartley v Maddocks ([1899] 2 Ch 199, 68 LJCh 496, 80 LT 755, 47 WR 573, 43 Sol Jo 531, 39 Digest
171, 623); Mitchell v Mosley ([1914] 1 Ch 438, 83 LJ Ch 135, 109 LT 648, 30 TLR 29, 58 Sol Jo 118, CA, 34
Digest 675, 709); and see the Conveyancing and Law of Property Ordinance, Cap 27, No 12 [T], s 66 (1),
and its equivalent provision in England, s 141 (1) of the Law of Property Act, 1925 [UK].)
It was accordingly conceded that the fixed yearly rent of $989.10 reserved here does fall to be
apportioned between the co-reversioners, and indeed counsel for the appellants went as far as conceding
that the royalties too were apportionable in principle, but contended that as far as the rent was concerned
the apportionment should be according to the acreage of the severed parts of the estate and not the value,
and that when it came to apportioning the royalties that that should be done according to where the oil was
won, so that in the present case where all the oil was won on the appellants parcel and none on the
respondents all the royalties should be payable to the appellants and none to the respondents.
The judge supported the appellants contention that the apportionment of the rent should be according
to acreage. His finding in this regard has not been seriously challenged.
With regard to the question of the apportionment of the royalty the main argument revolved around the
respondents contention that the royalty reserved in this memorandum of lease was a true rent, and
accordingly fell to be apportioned on severance of the reversion exactly as the rent was apportioned.
Substantially the whole case turns on the question of what was and is the true nature of the consideration
reserved in this memorandum of lease as royalty, and in particular whether that royalty can be regarded as a
true rent.
As we have already indicated, in our view the answer to this problem must first be sought from the
memorandum itself.
The plain meaning of the operative words of the memorandum is that it is a lease and not a sale.
Moreover it is a lease, not of the land forming the co-reversioners various parcelsfor by clause 4 ( k) the
surface of the land is specifically excepted out of the demisebut of the demised substances, described in
the premises as all the mines, beds, veins, seams and deposits of crude oil petroleum and other mineral
oils and all other petroliferous bituminous substances and their congeners including natural gas asphalt and
related hydrocarbons.
In substance what this amounts to is the lease of an oil field, for the purpose of winning oil and other
products from it. It is what is commonly called a mining lease, but there is no particular magic about this
term. In s 2 of the Conveyancing and Real Property Ordinance, Cap 27, No 12 [T], the term mining lease
receives a wide definition as meaning a lease for mining purposes, that is, the searching for, winning,
working, getting, making merchantable, carrying away, or disposing of mines and minerals, or purposes
connected therewith and includes a grant or licence for mining purposes.
A mining lease might well be drawn up in such a way that the resultant transaction was, in law, a licence
for the use and occupation of land coupled with a sale of the substances below that landand it would still be
a mining lease. But the mere fact that substance is taken from the land and not replaced does not preclude
a transaction whereby one party is entitled to go on the land of another and win the substance therefrom
from being a lease. (See R v Westbrook, R v Everist ((1847), 10 QB 178, 2 New Mag Cas 131, 2 New Sess
Cas 599, 16 LJMC 87, 9 LTOS 21, 11 JP 277, 11 Jur 515, 116 ER 69, 31 Digest (Repl) 236, 3704).) In point
of fact every mining lease envisages the removal of substance from the land, but no authority supports the
proposition that no mining lease can ever be a true lease at all. In our view it depends entirely on what is
expressed as agreed between the parties.
In the course of his judgment the learned judge reviewed a number of cases in which the nature of a
mining lease came in for consideration. In particular, reference was made to Gowan v Christie ((1873), LR 2
Sc & Div 273, HL, 34 Digest 671, 673); Coltness Iron Co v Black ((1881), 6 App Cas 315, 51 LJQB 626, 45
LT 145, 46 JP 20, 29 WR 717, 1 Tax Cas 287, HL, 28 Digest (Repl) 143, 546); Munro v Didcott ([1911] AC
140, 80 LJPC 65, 103 LT 682, 27 TLR 176, PC); Daniel v Gracie ((1844), 6 QB 145, 13 LJQB 309, 8 Jur
708, 115 ER 56, 31 Digest (Repl) 235, 3703); Barrs v Lea ((1864), 3 New Rep 635, 33 LJ Ch 437, 10 LT
567, 10 Jur NS 996, 12 WR 525, 31 Digest (Repl) 236, 3705); R v Westbrook, R v Everist ((1847), 10 QB
178, 2 New Mag Cas 131, 2 New Sess Cas 599, 16 LJMC 87, 9 LTOS 21, 11 JP 277, 11 Jur 515, 116 ER
69, 31 Digest (Repl) 236, 3704); and Mitchell v Mosley ([1914] 1 Ch 438, 83 LJ Ch 135, 109 LT 648, 30 TLR
29, 58 Sol Jo 118, CA, 34 Digest 675, 709).
Hartley v Maddocks [1899] 2 Ch 199, 68 LJ Ch 496, 80 LT 755, 47 WR 573, 43 Sol Jo 531, 39 Digest
171, 623

448

No hard and fast rules or criteria emerge from these cases, still less any rigid definition of a mining
lease. The reason in our view is not far to seek. Mining leases so called lend themselves to a variety of
forms and provisions. Each case must be decided on its own particular set of facts. The paramount
consideration is: what was the intention of the contracting parties? And where, as almost invariably, there is
a written transaction drawn up, the answer to this important question must be sought in that instrument and
not else where. (See Barrs v Lea ((1864), 3 New Rep 635, 33 LJ Ch 437, 10 LT 567, 10 Jur NS 996, 12 WR
525, 31 Digest (Repl) 236, 3705); and per Cozens-Hardy MR, in Mitchell v Mosley ([1914] 1 Ch 438, 83 LJ
Ch 135, 109 LT 648, 30 TLR 29, 58 Sol Jo 118, CA, 34 Digest 675, 709) ([1914] 1 Ch at p 450).)
The relationship of the parties is determined by law on a consideration of the agreement as a whole and
by reference to all its relevant provisions. While it is true that the use of words such as lease, licence,
sale, etc., in a memorandum are not conclusive of the intention of the contracting parties to establish such
transactions between themselves, and that they will not be so interpreted if the context of the memorandum
taken as a whole points to an intention to create relationships of a different character, nevertheless the use
of such terms is some evidence of such intention; and, at least, the use of terms importing the grant and
acceptance of a lease afford some indication of an intention not to enter into a contract of sale. Examination
of the memorandum in the present case before us reveals the use of language appropriate to a lease
throughout. No reference is made to any transaction of sale.
So much for the instrument as a whole. The relevant provisions provide further guidance. The most
important is the one to which we have already referredthe reservation of rent and royalties payable by the
lessee, under clause 2 of the lease. By this clause a fixed yearly rent of $989.10 and various royalties in
cash computed at stipulated rates on the quantity of oil and by-products won were reserved. But the
assessment and payment of this consideration was subject to a number of provisos. The broad practical
effect of these was to make the rent reserved a fixed minimum consideration payable in any event, to which
should be added only such royalties (if any) as accrued over and above that figure.
Thus proviso (a) to clause 2 provided that if the royalties in any half-year amounted to or exceeded the
rent paid in advance for that half-year then the royalties payable would be reduced by the rent already paid.
Likewise, by proviso (b), if the royalties in any half-year fell short of the rent paid in advance for that
half-year then no royalties would be paid at all.
Proviso (c) allowed the lessee to take into account the whole calendar year, so that if the total royalties
due in that year amounted to or exceeded the total rent paid in advance for that year, then the royalties due
would be reduced by the total rent already paid; and similarly, if the years royalties fell short of the years
rent paid then no royalties would be payable in respect of that year at all; whilst there was provision in each
case for refund of any overpayments of royalty already made.
It will be apparent from the wording and working of these provisos that in this instrument the
conceptions of rent and royalty are closely integrated. It was the contention of counsel for the respondents
that as far as this memorandum was concerned they were clearly the same thing. Being the same thing,
they argued, they should be treated in the same way: this memorandum was a lease and an entire lease,
and the royalties due under it should be apportioned in exactly the same way as the rent. Moreover, as they
point out, rent is defined in s 2 of the Conveyancing and Law of Property Ordinance, Cap 27, No 12 [T], as
including royalty; while land in the same section is defined as including mines and minerals.
Reference to the terms of the memorandum of lease will show that a number of badges of rent attach to
the royalty made payable thereby. Thus it is reserved, and is specifically referred to as reserved in the
lease (see clause 5

449
(c) and (d)); it issues out of the oil and by-products, which are corporeal hereditaments; and it is
recoverable by distress (see clause 5 (c)).
All these arguments which have been advanced to us, and the circumstancesin particular the terms of
the leaseon which they are based, point strongly to the conclusion that the royalty which is reserved in this
lease is a true rent. As such it issues out of each and every part of the thing demisedthat is the oil field
lying under the entire tract of the co-reversioners parcels of landand never exclusively out of any isolated
portion of that oil field.
The appellants argument that the royalty here was not a true rent was based largely on a dictum of
Lord Cairns MR in Gowan v Christie ((1873), LR 2 Sc & Div 273, HL, 34 Digest 671, 673) in which he
referred ((1873), LR 2 Sc & Div at p 283) to a mining lease as really, when properly considered, a sale out
and out of a portion of land. It was contended here that the royalty reserved was a payment for the
substance of the hereditament taken. We have already indicated our view that this could indeed be the
effect of a mining lease if the terms of the instrument creating it pointed to an intention on the part of the
parties to contract a sale. But that is not the interpretation we can put upon the memorandum of lease here.
Much time and argument was devoted both here and in the Chambers Court below to the consideration
of American authorities, there being no British Commonwealth decision substantially in point. The American
authorities are of great interest, but they are only of assistance if they are based upon principles which are
applicable here. It appears that the problem of the apportionment or otherwise of royalty reserved in a

mining lease upon a severance of the reversion has been before the American courts on a number of
occasions. The effects of the various decisions have been admirably summarised in Summers On Oil And
Gas Leases (Permanent Edn), Vol 3, pp 517-536. In the majority of these cases the American courts have
held that royalty is not apportionable but belongs entirely to the reversioner on whose parcel of land the oil
has been won. This, of course, is the solution which the appellants are seeking. But an examination of
these majority cases shows that they are all founded on the conception that royalty is not rent, that it is not,
in fact, an incorporeal hereditament at all, but rather the substance of the thing, the oil in place, itself. That
is not a conception we can accept here: the royalty reserved is clearly an incorporeal hereditament, and as
we have already indicated, a true rent. This was the conception behind the minority of American decisions
which decided that royalty was apportionable on severance of the reversion in proportion to the value of the
severed portions.
We hold that upon its true interpretation the agreement entered into here between the original lessors
and lessee is a lease, and not a sale, of the particular mines and minerals specified underlying the surface
of the lessors land.
We also hold that it is an entire lease. It is true that the reversion has been severed, but this has had no
effect on the lease itself. The lessee under this lease enjoys a legal estatea legal term of years absolute in
the demised substances lying under the entire tract of the reversioners parcels. This legal estate is
indivisible; it is incapable of being divided by any act of the reversioners. Division of the lease into individual
leases could only be achieved with the concurrence of the lessee by making fresh agreements. There has
been nothing of that sort here.
We also hold that the consideration reserved in the lease, consisting as it does of a fixed yearly rent and
certain royalties, is, in law, a true rent; and that upon severance of the reversion all of that considerationthat
is both fixed yearly rent and the royaltiesfell to be apportioned between the co-reversioners.
There remains the question of the assessment and calculation of the apportionment. According to what
measure should the share of each co-reversioner be determined? The learned judge found that the ordinary
rule was that rent should be apportioned according to quality or value at the time of severance

450
and not according to quantity or acreage. He referred to Salts v Battersby (1) and to a passage in
Woodfall On Landlord And Tenant (24th Edn), at p 306. But he held that the rent, that is the fixed yearly
rent, should be apportioned among the reversioners according to acreage because the lease specifically
referred to the rent of $989.10 as the aggregate rent payable... when computed at the rate of ten dollars
for each acre, and he held that that computation of the rent by the acre was just as much binding on the
reversioners vis-a-vis each other as it was between the lessors and the lessee, and excluded the rule which
would otherwise have been applicable.
We agree with the learned judges decision that the ordinary rule is apportionment by value but we do
not agree that a de facto computation by acreage necessarily amounts to or presages the exclusion of that
rule. It seems to us that in a lease of this sort where what is let is an unascertained quantum of oils and byproducts below the surface of the lessors lands, the only possible criterion of the value of each coreversioners share of that oil and by-products is the acreage of his holding of the surface land, of the roof as
it were, above them. Oil is fugitive; and there is absolutely no evidence here as to how it is or was disposed
beneath the surface. Even the evidence, that, subsequently, a well drilled on the appellants parcel of land
yielded oil cannot be regarded as an indication that either more or less oil was located under the surface of
the appellants parcel than under the surface of any of the co-reversioners parcels.
The true value of each co-reversioners reversion is the value of the oil and by-products lying beneath
the surface of his parcel. In the absence of any positive evidence as to how the oil and its by-products are
distributed there is no basis for any speculation, and it can only be assumed that the distribution is uniform
and even. In these circumstances the relative proportion or share of the surface over the oil and byproducts which each reversioner holds is the only possible measure of the value of his reversion in that oil
and its by-products.
In the result we agree with the findings of the learned judge, though in the matter of the assessment of
the apportionment of the fixed yearly rent we have arrived at the same conclusion for somewhat different
reasons; and in regard to the assessment of the apportionment of the royalty we have carried his finding a
stage further. We have done this because the main force of the case for the appellants has been founded,
not so much upon whether or not the principle of apportionment applies to the royalties here, but as to how it
is to be applied.
We do not think that question is fully answered by saying that apportionment shall be according to value
at the date of severance without giving some indication of the principles on which that valuation should be
made.
Counsel for the appellants in his reply went so far as to submit that the proper ratio of apportionment
was 100 : 0 in favour of the appellants. It was necessary for us to deal with that submission which so far as
we can make out was never put so positively, or at all, before the learned judge. As we have already
indicated we reject it because what we have to estimate is the value of each co-reversioners reversion in

the demised oil field at the date of severance; and even if we take into account the oil that came to the
surface through the well on the appellants parcel some eleven years after the date of severance, we cannot
say that that oil came exclusively from that portion of the oil field of which the appellants enjoyed the
reversion, nor indeed that it came from any particular part of the oil field.
The appeal is dismissed, but having regard to our special findings in respect of the method of
apportionment, we vary the learned judges order by adding thereto a declaration corresponding to the terms
of the relief prayed for in the originating summons, that:
(1) The royalties paid and payable under the memorandum of lease by the lessee are
apportionable between the appellants and respondents as co-reversioners.

451
(2) That the portion or share in the royalties to which each individual co-reversioner is entitled is
that proportion of the whole which the acreage of his (or her) particular holding bears to the whole land
surface of 98.91 acres, in and under which the demised substances lie.
We agree with the judges direction that the matter be referred back to a judge in chambers, but we add
a direction thereto that the exact portions or shares of the royalties paid and payable to each individual coreversioner be calculated in accordance with the principles we have enunciated; and we order that the
lessee do pay, and thereafter continue to pay, the royalties, in the proportions so certified, to the coreversioners so entitled.
Parties will pay their own costs both here and in the Chambers Court below.
Appeal dismissed. Order varied.

(1959) 1 WIR 452

Simpson v Ghany
SUPREME COURT OF TRINIDAD AND TOBAGOAPPELLATE JURISDICTION
GOMES CJ, BLAGDEN AND HYATALI JJ
4 NOVEMBER, 19 DECEMBER 1959

Pleading and practice Long vacation Service of writ with statement of claim attached to it Cause of
action within RSC [T], O 3, r 6 Whether writ accompanied by a statement of claim Meaning of
specially indorsed with or accompanied by in O 3, r 6 Whether service of a writ with statement of claim
attached constitutes delivery of a pleading during the long vacation under RSC [T], O 64, r 4.
On 30 July 1958, the appellant issued a writ indorsed in general terms with her statement of claim affixed to
it, claiming as widow and dependant of TS, deceased, and as administratrix of his estate, under the
Compensation for Injuries Ordinance, Cap 5, No 5 [T], and the Judicature Ordinance, Cap 3, No 1 [T],
damages in respect of injuries to the deceased which resulted in his death.
Service of the writ with the statement of claim affixed to it was effected on 14 August 1958, during the long
vacation on the respondent who entered an unconditional appearance on 20 August. The long vacation
ended on 3 October and on 31 October the appellant obtained judgment in default of defence. This
judgment was subsequently set aside as irregular on the ground that the appellants statement of claim was,
in breach of RSC [T], O 64, r 4, delivered during the long vacation without the leave of the court or a judge.
By RSC [T], O 3, r 6 (5):
(5) In all other actions which may in England be brought in the Kings Bench Division (except actions for
libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage, and
actions in which fraud is alleged by the plaintiff);
the writ of summons may, at the option of the plaintiff, be specially indorsed with or accompanied by a
statement of his claim, or of the remedy or relief to which he claims to be entitled. Such special indorsement
may be to the effect of such of the Forms in Appendix C, Sections IV to VII inclusive, as shall be applicable
to the case or in a similar form.

452

By RSC [T], O 21, r 1:

The delivery of statements of claim shall be regulated as follows:
(a) Where the writ is specially indorsed with or accompanied by a statement of claim under Order III, Rule 6,
no further statement of claim shall be delivered unless the Court or a Judge shall otherwise order.
(b) Subject to the provisions of Order XIII, Rule 13, as to filing a statement of claim when there is no
appearance, the plaintiff shall (unless he has delivered a statement of claim under Order III, Rule 6, or the
Court or a Judge otherwise orders) deliver a statement of claim either with the writ of summons or notice in
lieu of writ of summons, or within ten days after appearance, provided that the times prescribed by this
paragraph may be enlarged by consent in writing or by the Court or Judge.
By RSC [T], O 64, r 4:
No pleading shall be amended or delivered in the Long Vacation unless directed by the Court or a Judge;
provided that a statement of claim specially endorsed on a writ of summons may, without any leave, be
amended once during the Long Vacation pursuant to rule 2 of Order XXIX.
Held: (i) Once a statement of claim accompanies a writ or is delivered with it, it must be considered as being
done under RSC [T], O 3, r 6, so long as it is in respect of a cause of action within that rule; conversely, if it
is a statement of claim in respect of a cause of action that is not within that rule, a defendant must regard it,
when it accompanies, or is delivered with, the writ, as being delivered under RSC [T], O 21, r 1 (b).
(ii) If a writ is accompanied by a statement of claim within the meaning of RSC [T], O 3, r 6, it is not, nor can
it be, physically specially indorsed with that statement of claim, and it is in that sense a misnomer to
describe it as a specially indorsed writ. It would be more accurate to describe it as a writ specially
accompanied by a statement of claim.
(iii) A statement of claim which is delivered with or accompanies the writ within the meaning of RSC [T], O 3,
r 6, is as integral a part of the writ as a statement of claim indorsed on the writ, and may, therefore, be
served at any hour of the day or night and in the long vacation without leave. Upton v Mackenzie ((1822), 1
Dow & Ry KB 172, Digest, Pract, 315, 399), Priddee v Cooper ((1822), 1 Bing 66, 7 Moore, CP 358, 1
LJOSCP 8, 130 ER 27, Digest, Pract, 315, 397) applied.
(iv) Although service of such a writ accompanied by a statement of claim is not delivery of a pleading within
the meaning of RSC [T], O 64, rr 4 and 11, it nevertheless constitutes delivery of a pleading within the
meaning of RSC [T], O 14, r 1, O 21, r 1, and O 22, r 6. Murray v Stephenson ((1887), 19 QBD 60, 56 LJQB
647, 56 LT 720, 35 WR 666, Digest, Pract, 139, 1255), Anlaby v Praetorius ((1888), 20 QBD 764, 57 LJQB
287, 58 LT 671, 36 WR 487, 4 TLR 439, CA, Digest, Pract, 139, 1256) applied.
(v) The true rule may be stated to be that a statement of claim cannot be delivered in the long vacation
unless it is indorsed on or accompanies the writ under RSC [T], O 3, r 6, or unless the court or a judge so
orders.
(vi) Even though RSC [T], O 64, r 4, expressly provides that a statement of claim indorsed on the writ may
be amended once during the long vacation without leave but is silent about a statement of claim
accompanying the writ, the rule could not, by implication merely, be construed to defeat the beneficial or
remedial option given to a plaintiff under RSC [T], O 3, r 6, in clear, express and positive terms, to
accompany his writ by a statement of claim in cases within this rule, during the long vacation.
Appeal allowed.
Cases referred to
Dummer v Brown [1953] 1 All ER 1158, [1953] 1 QB 710, 97 Sol Jo 331, CA, 3rd Digest Supp
Cassidy & Co v McAloon (1893), 32 LRIr 368

453
Ryler v Master, Sheba Gold Mining Co, Ltd v Trubshawe [1892] 1 QB 674, 681-682, 61 LJQB 219, 66 LT
228, 40 WR 381, 8 TLR 369, 36 Sol Jo 329, DC, Digest, Pract, 139, 1257

Wilks v Wood [1892] 1 QB 684, 687, 61 LJQB 516, 66 LT 520, 40 WR 418, 8 TLR 465, 38 Sol Jo 379,
Digest, Pract, 276, 107
Veale v Automatic Boiler Feed Co, Ltd (1887), 18 QBD 631, 56 LJQB 307, 35 WR 454, Digest, Pract, 139,
1254
Murray v Stephenson (1887), 19 QBD 60, 56 LJQB 647, 56 LT 720, 35 WR 666, Digest, Pract, 139, 1255
Anlaby v Praetorius (1888), 20 QBD 764, 57 LJQB 287, 58 LT 671, 36 WR 487, 4 TLR 439, CA, Digest,
Pract, 139, 1256
Upton v Mackenzie (1822), 1 Dow & Ry KB 172, Digest, Pract, 315, 399
Priddee v Cooper (1822), 1 Bing 66, 7 Moore, CP 358, 1 LJOSCP 8, 130 ER 27, Digest, Pract, 315, 397
Appeal
Appeal by the plaintiff against the order of Peterkin J, made in Chambers setting aside an interlocutory
judgment obtained by the plaintiff in default of defence. The facts and arguments are set out in the judgment
of the court.
Bruce Procope (instructed by M T I Julien) for the appellant
T Hosein (instructed T Malcolm Milne) for the respondent
Cur adv vult
GOMES CJ delivered the judgment of the court: This is an appeal against the decision of Peterkin J, in
Chambers dated 16 April 1959, setting aside an interlocutory judgment obtained by the appellant against the
respondent on 31 October 1958, in default of defence.
On 30 July 1958, the appellant issued a writ against the respondent indorsed with a statement of the
nature of her claim, as follows:
The plaintiffs claim is (a) as widow and dependant of Thomas Simpson deceased under the
Compensation for Injuries Ordinance Cap 5 No 5, and (b) as Administratrix of Thomas Simpson
deceased under the Judicature Ordinance Cap 3 No 1 for damages (a) in respect of injuries sustained
by and resulting in the death of the said Thomas Simpson deceased and (b) for damages for
negligence caused by the negligent driving of motor vehicle TC 5730 by the defendant his servant or
agent at Barataria on the 5th day of March 1958.
2. The plaintiff brings this action for her own benefit and for the benefit of her 6 children as
dependants of the said Thomas Simpson deceased namely: Peter Simpson, Hugh Simpson, Doriean
Simpson, Doreen Simpson, Albert Simpson and Alfred Simpson.
The writ of summons with the statement of claim affixed to it was served on the respondent on 14
August 1958that is to say, during the long vacation. The respondent entered an unconditional appearance
on 20 August. The long vacation came to an end of 3 October 1958. On 31 October no defence having
been entered, the appellant, pursuant to RSC [T], O 28, r 4, obtained judgment in default of defence for
damages to be assessed with costs to be taxed, and on 18 November 1958, the appellant took out a
summons for assessment of damages.
Three days later, that is, on 21 November the respondent moved for the first time since entering an
appearance and took out a summons asking for an order that the interlocutory judgment entered in default of
defence, and all other proceedings subsequent thereto, be set aside, on the ground that the appellants
statement of claim was delivered to the respondent during the long vacation in contravention of O 64, r 4.
The summons was supported by affidavit, and it is to be observed from the contents of the summons and
the affidavit, that the

454
only ground advanced for setting aside the interlocutory judgment was this purely technical one.
At the hearing of the summons the respondent conceded that the writ was accompanied by the
statement of claim under O 3, r 6, but submitted that a statement of claim when accompanying a writ during
the long vacation was a pleading within the meaning of O 64, r 4, and could not therefore be delivered with
the writ without leave of the court. In reply the appellant submitted that O 64, r 4, had no application to the
case, as the statement of claim, being one which accompanied the writ under O 3, r 6, could have been
delivered during the long vacation without leave. The learned judge upheld the submission of the
respondent and accordingly set aside the judgment.
At the hearing of this appeal, however, counsel for the respondent maintained that he was entitled to
support the decision of the judge on any ground that was open to him. He then submitted that the writ ex
facie and in law was a generally indorsed writ, and, especially so, because the indorsement at the foot of the
statement of claim was stated to be Statement of Claim delivered with the writ of Summons, instead of

words such as Statement of Claim accompanying the Writ of Summons; and for the purpose of that
argument he abandoned the concession he had made before the judge that the writ was accompanied by
the claim. We consider therefore that the first question to be determined isWas the writ of summons
accompanied by a statement of claim under O 3, r 6?
There is no doubt that the statement of claim in this case was served personally on the appellant during
the long vacation but it was stapled to the writ of summons, and it is the appellants case that it was in fact
part of the writ and as such was quite properly served with it during the long vacation.
When a writ of summons is issued, it must be indorsed with a statement of the nature of the claim made
(RSC [T], O 2, r 1) and be framed in accordance with one or other of the forms prescribed in Appendix A,
Part 1 (RSC [T], O 2, r 3). In certain actions, of which the present is one (vide Dummer v Brown ([1953] 1 All
ER 1158, [1953] 1 QB 710, 97 Sol Jo 331, CA, 3rd Digest Supp)), the writ of summons may, at the option of
the plaintiff, be specially indorsed with or accompanied by a statement of claim (RSC [T], O 3, r 6); and, if
that is properly done, the plaintiff is entitled to make use of the accelerated procedure to obtain judgment
prescribed by O 14 There is, however, no obligation on the part of the plaintiff to follow the procedure
prescribed by O 3, r 6. He may, if he wished, indorse his writ generally, and deliver his statement of claim
subsequently, but within ten days of the defendants entry of appearance (RSC [T], O 21, r 1 (b)).
Inspection of the writ itself and its indorsement and comparison with the forms of writ prescribed for use
by O 2, r 3, appearing in Appendix A, Part 1, indicate that the writ, simpliciter, carries an indorsement in
general terms.
Where a writ is accompanied by a statement of claim, the writ, to be valid, must still carry an
indorsement. That indorsement cannot take the form of a statement of claim, otherwise the plaintiff would
be delivering two statements of claim. It must therefore, ex necessitate, be framed in general terms.
Support for this view is to be found from a consideration of Form 4 in Vol 1 of Atkins, Forms And Precedents,
at pp 51 and 52, which is entitled:
Writ of Summons to be accompanied by a statement of claim under Order 3, r 6.
Reference to that form shows that it is indorsed in purely general terms but the indorsement is followed by
words in brackets as follows:
This writ is accompanied by a Statement of Claim under Order 3, r 6.
These words carry a note which reads:
The words between the brackets are not essential and are not prescribed by any rule or form, but
they are convenient to indicate that the accompanying

455
Statement of Claim is delivered under Order 3, r 6, and not merely under Order 20, r 1 (b).
Order 20 [UK] is, of course, equivalent to our O 21.
If a writ is accompanied by a statement of claim it is not, nor can it be, physically specially indorsed with
that statement of claim and it is in that sense a misnomer to describe it as a specially indorsed writ. It
would be more accurate, in our view, to describe it as a writ specially accompanied by a statement of claim.
In other words, we consider that it would be a proper construction of O 3, r 6, having regard to its objects, if
the words indorsed with and the words accompanied by were governed in each case by the word
specially which precedes the former, for the word specially relates to procedure rather than form.
In this connection it is of interest to note a passage in Odgers On Pleading And Practice (16th Edn)
where the learned author in note 18 on p 45 has this to say:
Apart from Order 3, Rule 6, the Statement of Claim may be delivered with a writ pursuant to Order
20, Rule 1 (b). This is not the same technically as accompanying the writ. (Henceforth the term
specially indorsed writ is to be understood as meaning a writ specially indorsed with or accompanied
by a Statement of Claim under Order 3, Rule 6.)
At first sight the striking out from the printed form of the writ of the instruction or warning to the
defendant relating to appearance and delivery of defence would appear to indicate that the writ was not
issued under O 3, r 6, but this is not necessarily so. The warning as to appearance and delivery of defence
which appears on a specially indorsed writ is prescribed in the Rules ex abundanti cautela to ensure that the
defendant is not misled into assuming that the indorsement on the writ is a statement of the nature of the
claim merely and not the statement of claim itself. Hence the requirement that the indorsement should be
headed Statement of Claim (see Cassidy & Co v MAloon ((1893), 32 LRIr 368)). The defendant is
accordingly warned that if he enters an appearance he must also deliver a defence within 14 days from the

last day of the time limited for appearance. But if the statement of claim either accompanies the writ or is
delivered with it, this warning is not necessary, for in either case the defendant knows or must be taken to
know that, if he enters an appearance, he must deliver a defence within 14 days from the time limited for
appearance or from the delivery of the statement of claim, whichever is the later (see O 22, r 6); and he can
be in no doubt about the delivery of the statement of claim since it is handed to him with the writ. Whether
thereafter the plaintiff makes use of the procedure under O 14, r 1, or not, is a matter entirely for the plaintiff,
upon which the defendant requires no further warning other than the summons under O 14, r 2, will give him.
In this connection it is of interest of note a passage appearing on p 24 of the Annual Practice of 1951
which is not repeated in the 1958 issue of this work. The passage is part of the notes to O 3, r 6, and
appears under the rubric Or accompanied by, It reads as follows:
It is to be observed that if a plaintiff serves an ordinary writ with a Statement of Claim
accompanying no provision is made for giving the defendant the notice relating to the necessity to
delivery (sic) a defence and forming an integral part of a specially endorsed writ and provided for by
Form No 2 of Appendix A Part 1.
The statement of claim itself which is alleged on behalf of the appellant accompanies the writ is, as
counsel for the respondent has pointed out, actually indorsed as being delivered with the writ .... If there is
any real

456
technical significance in the use of the words accompany and deliver this might be an indication of
some substance that the appellant was not proceeding by way of O 3, r 6. But in our view these terms ought
not to be so narrowly construed. To do so would mean that the word delivered in the phrase unless he
has delivered a statement of claim under Order III, Rule 6 in O 21, r 1 (b), would exclude the process of
accompanying a writ by a statement of claim. Further, in the Yearly Practice Of The Supreme Court, 1935,
passages relating to procedure under O 3, r 6, use the two terms indiscriminately. Thus for instance at p 20
we find this passage in the notes to O 3, r 6:
Rule 6Special Endorsement.
This rule is the gateway to Order 14.... It enables the plaintiff in cases within it to endorse his writ
specially on his Statement of Claim or to deliver his Statement of Claim with such writ ...;
and at p 334 in the notes to O 20, r 1 (b), under the rubric Time for delivery of Statement of Claim it is
stated that:
In actions within Order 3, Rule 6, the Statement of Claim is endorsed on the writ or delivered
separately with it.... In other actions... the Statement of Claim can be delivered with the writ....
In our view it would be unsafe to rely on the use of particular words and phrases in indorsements
appearing on writs as indicating the procedure which was being followed.
A further point which was not raised, but must not be overlooked, is the fact that the appellant signed
judgment in default of defence instead of taking out a summons for judgment under O 14. This would
appear to indicate that the statement of claim had been delivered under O 21, r 1 (b), but we consider that
that fact does not determine the matter, as signing judgment in default of defence is also a permissible
procedure where the statement of claim is specially indorsed on the writ itself.
As against these objections, the objects of the rule in question must be borne in mind. Prior to the year
1933 the object of the rule was to enable a plaintiff to obtain summary judgment in three main classes of
actions by giving him the option of specially indorsing his writ with a statement of his claim. In that year,
however, the rule was extended to include all other actions which may in England be brought in the Kings
Bench Division, except those specially mentioned in the rule, and at the same time the option which a
plaintiff had was also extended by permitting him to accompany his writ by a statement of claim. It seems to
us that the object of the latter extension was for convenience and to facilitate the operation of the extension
in cases where a simple indorsement could not be conveniently made. Support for this view is to be found
in the Yearly Practice Of The Supreme Court, 1935, at p 155, under the rubric Or accompanied by a
statement of claim as follows:
Now that the scope of Order 3, r 6, has been so widely extended... it may obviously be more
convenient in proper cases to deliver a separate statement of claim with the writ.
It may nevertheless be asked, if the rule is to be interpreted as indicated previously, how is a defendant
to know whether a statement of claim accompanies the writ under O 3, r 6, or is delivered under O 21, r 1
(b)? It is clear that if the cause of action is of a kind or includes a claim which cannot be specially indorsed,

O 14 does not apply to it (see Ryler v Master Sheba Gold Mining Co, Ltd v Trubshawe ([1892] 1 QB 674,
681-682, 61 LJQB 219, 66 LT 228, 40 WR 381, 8 TLR 369, 36 Sol Jo 329, DC, Digest, Pract, 139, 1257)
and Wilks v Wood ([1892] 1 QB 684, 687, 61 LJQB 516, 66 LT 520, 40 WR 418, 8 TLR 465, 38 Sol Jo 379,
Digest, Pract, 276, 107)). It would follow that, subsequent to the year 1933, the position would be the same
in respect of a statement of claim accompanying a writ. The answer therefore in our opinion is that, once a
statement of claim accompanies a writ or is delivered with it, it must be

457
considered as being done under O 3, r 6, so long as it is in respect of a cause of action within the rule;
conversely, if it is a statement of claim in respect of a cause of action that does not come within O 3, r 6, a
defendant must regard it, when it accompanies or is delivered with the writ, as being delivered under O 21, r
1 (b).
Further, this construction makes for uniformity and certainty in practice, and precludes an absurdity
which would result from interpreting the rule that the unqualified option which is given to a plaintiff may be
exercised only outside the long vacation but not within it. Such a construction would be untenable because
the interpretation of the rule would then depend upon whether an act done under it was or was not done
during the long vacation.
For these reasons we hold that the writ of summons in this case was accompanied by the statement of
claim under O 3, r 6, as was in fact conceded before the judge.
We now come to the principal question to be decided on this appeal, namely: whether a statement of
claim which accompanies, or is delivered with, a writ issued in respect of a cause of action within O 3, r 6, is
a pleading within the meaning of O 64, r 4, and therefore incapable of being delivered with the writ in the
long vacation unless directed by a court of judge.
Counsel for the respondent submitted that a specially indorsed writ or, to put it more accurately, a writ
with the statement of claim specially indorsed on it, is not a pleading nor a writ plus a pleading. It is only
deemed to be a pleading and is consequently not within O 64, r 11 (which deals with the day and time of day
when service of pleadings and other proceedings may be effected). It was because of this, he stated, that it
may be served at any hour of the day or night and in the long vacation. He maintained, however, that in the
case of a statement of claim which accompanied the writ, that statement of claim was a pleading within that
rule and could not by reason of O 64, r 4, be delivered during the long vacation. In support of these
submissions he quoted the cases of Veale v Automatic Boiler Feed Co Ltd ((1887), 18 QBD 631, 56 LJQB
307, 35 WR 454, Digest, Pract, 139, 1254) and Murray v Stephenson ((1887), 19 QBD 60, 56 LJQB 647, 56
LT 720, 35 WR 666, Digest, Pract, 139, 1255).
In the former case, a statement of claim specially indorsed on a writ omitted to state at the back of the
writ that the statement of claim was delivered. It was in this context that it was held that it was not
essential that the word delivered should be inserted on the back of the writ and, moreover, one did not
speak of delivering a writ specially indorsed but of serving it.
In the latter case it was held that a writ specially indorsed was not a pleading within the meaning of O
64, r 11, and service thereof may be effected at any hour of the day. Both these cases were decided long
before the extension of O 3, r 6. It is to be noted that in neither case was it held that the statement of claim
indorsed on the writ was not a pleading for any purpose at all.
Prior to 1933 the English O 20, r 1 (a), specifically provided that where the writ is specially indorsed
under O 3, r 6, no further statement of claim shall be delivered but the indorsement on the writ shall be
deemed to be the statement of claim. In the case of Anlaby v Praetorius ((1888), 20 QBD 764, 57 LJQB
287, 58 LT 671, 36 WR 487, 4 TLR 439, CA, Digest, Pract, 139, 1256) it was however held that the words
no further statement of claim in the rule clearly implied that the indorsement on the writ was a statement of
claim, and the words shall be deemed to be a statement of claim made clearer still that it was. By the
amendment of 1933, the words of the rule deeming an indorsement on the writ the statement of claim were
deleted, and rightly so, because the decision in Anlabys v Praetorius case ((1888), 20 QBD 764, 57 LJQB
287, 58 LT 671, 36 WR 487, 4 TLR 439, CA, Digest, Pract, 139, 1256) rendered these words superfluous.
The English O 20, r 1 (a), is, as stated before, the equivalent of our O 21, r 1 (a).
Now it is clear that a writ of summons, so long as it is in force, may, except on Sundays, be served at
any time of the day or night, and in the long vacation (see Upton v Mackenzie ((1822), 1 Dow & Ry KB 172,
Digest, Pract, 315, 399); Priddee v Cooper ((1822), 1 Bing 66, 7 Moore, CP 358, 1 LJOSCP 8, 130 ER 27,
Digest, Pract, 315, 397)). It is equally clear that a plaintiff has an unqualified option to accompany his writ by
a statement of claim in respect of causes of action within O 3, r 6. If, therefore, he exercises that

458
option, it follows that when the writ is served, the statement of claim which accompanies it must also be
served therewith, as it then forms an integral part of the writ, in the same way as a statement of claim
specially indorsed on the writ. The predominant object of the extension of O 3, r 6, in 1933 was to place a
writ specially indorsed with, and a writ specially accompanied by, a statement of claim, on the same footing
for all purposes, and to clothe the writ in each case with equal privileges, for example, enabling a plaintiff to
take out a summons for judgment under O 14, and similar disadvantages, for example, disabling a plaintiff

from delivering a further statement of claim without leave under O 21, r 1. To hold, therefore, as counsel for
the respondent has submitted, that a plaintiff is not entitled during the long vacation to accompany his writ
with his statement of claim, would be tantamount to depriving the plaintiff during this period of the unqualified
option clearly conferred on him by the extension of O 3, r 6, which in our view never was nor could have
been intended.
In Anlabys v Praetorius case ((1888), 20 QBD 764, 57 LJQB 287, 58 LT 671, 36 WR 487, 4 TLR 439,
CA, Digest, Pract, 139, 1256), which was decided in the year following the decisions in the two cases quoted
by counsel for the respondent, it was held that service of a writ specially indorsed under O 3, r 6, was
delivery of a statement of claim to the defendant within the meaning of the English O 21, r 6, which
corresponds with our O 22, r 6; so that the defendant had 14 days from the time limited for appearance or
from the delivery of the statement of claim, whichever was later, for the delivery of his defence, unless the
time was extended or the plaintiff in the meantime served a summons for judgment. Similarly, in the case of
Murray v Stephenson ((1887), 19 QBD 60, 56 LJQB 647, 56 LT 720, 35 WR 666, Digest, Pract, 139, 1255) it
was held that a specially indorsed writ was not a pleading within the meaning of O 64, r 11, but it certainly
could not be said that it was not a pleading within the meaning of O 22, r 6, as Anlabys v Praetorius case
((1888), 20 QBD 764, 57 LJQB 287, 58 LT 671, 36 WR 487, 4 TLR 439, CA, Digest, Pract, 139, 1256)
established the following year. It is evident therefore that, while service of such a writ constitutes delivery of
a pleading under our O 22, r 6, it cannot be said to constitute delivery of a pleading under O 64, r 4 nor r 11.
With the extension of the relevant rules in 1933 to include a writ accompanied by a statement of claim it
seems obvious to us that the same interpretation must still be given thereto. In the result, the word
delivered in O 64, r 4, cannot be read as including the process of accompanying which takes place under
O 3, r 6, and we accordingly hold that a writ accompanied by a statement of claim constitutes delivery of a
pleading under O 22, r 6, but not under O 64, r 4 nor r 11. Having regard to the whole scheme and object of
the extensions in 1933, the true rule on this question may be stated to be, that a statement of claim cannot
be delivered in the long vacation unless it is indorsed on or accompanies the writ under O 3, r 6, or unless
the court or a judge so orders.
This view finds support in the following passages from the Annual Practice, 1959, at p 492, and Bullen
And Leakes Precedents Of Pleadings, 11th Edn, at p 11. In the former under the rubric ten days after...
appearance it is stated that:
Except by order, and except when indorsed on or delivered with the writ, or in cases provided for in
Order 64, r 4, it may not be delivered in the long vacation;
and in the latter, under the rubric Time for delivering pleadings it is stated that:
Although a writ of summons specially indorsed with or accompanied by a statement of claim under
Order 3, r 6, may be served at any time of the day or night except Sunday, pleadings must be
delivered before 4 pm, except on Saturdays, when they must be delivered before 12 noon....

459
A point of apparent difficulty however arises from the proviso to RSC [T], O 64, r 4, which states:
provided that a Statement of Claim endorsed on a writ of summons, may without leave, be
amended once during the long vacation pursuant to rule 2 of Order XXIX.
The difficulty arises because the proviso enables a plaintiff to amend a statement of claim indorsed on a writ
of summons during the vacation but is silent about a statement of claim accompanying a writ of summons
under O 3, r 6. The question therefore arises whether a statement of claim so accompanying the writ can be
amended during the long vacation, and if it cannot, how can it be maintained that such a statement of claim
is not a pleading within the meaning of this rule? We consider that the answer to this question is that when
the extension was made to Order 3, r 6, in 1933, a consequential amendment to this rule ought to have been
made by the inclusion of the words or accompanying after the words endorsed on in the rule, but through
an oversight it was not. In any event this proviso is directed only to amendments during the long vacation,
and the fact that it enables something to be done in that respect cannot by implication merely be construed
to defeat the beneficial or remedial option which is given to a plaintiff under O 3, r 6, in clear, express and
positive terms. That option, as we have stated, entitles the plaintiff to serve his writ with the accompanying
statement of claim and, even though it is a pleading for the purposes of O 14, r 1, O 21, r 1, and O 22, r 6,
service of the writ with the accompanying statement of claim is not delivery of a pleading within the
meaning of O 64, r 4, in the same way as a statement of claim indorsed on the writ is not.
The submissions made on the question that an unconditional appearance was followed by fresh steps
taken by the respondent after the issue of the summons to set aside the judgment do not, in view of our
decision, fall for determination; nor do the remainder of the grounds of appeal set out in the notice of motion.

For the foregoing reasons the appeal is allowed with costs, the order of the judge is set aside and the
interlocutory judgment of 31 October 1958, restored.
Appeal allowed.

460
(1959) 1 WIR 461

National Employers Mutual General Insurance Association Ltd v Pan

American World Airways Inc And Others
SUPREME COURT OF TRINIDAD AND TOBAGOAPPELLATE JURISDICTION
GOMES CJ, BAGDEN AND HYATALI JJ
4, 10, 20 NOVEMBER, 19 DECEMBER 1959

Rent Restriction Rent Assessment Board Application by landlord to determine standard rent Public or
commercial building let unfurnished First so let after the prescribed date Principles upon which Board
shall determine standard rent Rent Restriction Ordinance, Cap 27, No 18 [T], ss 7, 8 (3), 9 (1).
Rent Restriction Premises let without having previously been let in same category of letting Failure of
landlord to apply to Rent Assessment Board before the commencement of the tenancy to fix the provisional
standard rent Effect of such failure on (a) validity of tenancy, (b) establishment of a standard rent Rent
Restriction Ordinance, Cap 27, No 18 [T], ss 7, 8 (1), (2).
Rent Restriction Standard rent Air-conditioned premises Inclusion of charge for air-conditioning in
assessment of standard rent.
By s 8 (1), (2) and (3) of the Rent Restriction Ordinance, Cap 27, No 18 [T]:
(1) Where any premises are intended to be let as a dwelling-house or as a public or commercial building or
as building land in any category of letting, it shall be lawful for any person proposing to let the same to apply
to the Board to fix provisionally the rent which is to be the standard rent of the premises when they are so let
and the Board may, after due enquiry, fix such provisional standard rent accordingly; and if the premises are
later let in the same category of letting and substantially on such terms and conditions and in such
circumstances affecting the rent as have been disclosed to the Board, such provisional standard rent so
fixed by the Board shall be deemed to be the standard rent of the premises appropriate to that category of
letting.
(2) Where any premises are intended to be let as a dwelling-house or as a public or commercial building or
as building land, without having previously been let in the same category of letting, it shall be the duty of the
person proposing to let the same to apply to the Board under the preceding subsection before the
commencement of the tenancy to fix the provisional standard rent. If such person shall fail to comply with
the provisions of this subsection, he shall be guilty of an offence against the Ordinance.
(3) The landlord or the tenant of any premises to which this Ordinance applies may at any time apply to the
Board to determine the standard rent thereof appropriate to the category of letting in which they are
let. . . .
By s 7 of the Rent Restriction Ordinance, Cap 27, No 18 [T]:
Until the standard rent of any premises in relation to any category of letting has been determined by the
Board under section 9, the standard rent of the premises in relation to that category of letting shall be the
rent at which they were let in the same category of letting on the prescribed date or, where the premises
were not so let on that date, the rent at which they were last so let before that date, or, in the case of
premises first so let after the prescribed date, the rent at which they were, or are hereafter, first so let.
By s 9 (1) of the Rent Restriction Ordinance, Cap 27, No 18 [T]:

When the standard rent of any premises in relation to any category of letting is determined by the Board, it
shall be determined on the principles of section 7, modified as follows

461
(a) where the premises were not let in the same category of letting on or before the prescribed date, the
standard rent shall be the rent which, in the opinion of the Board, might reasonably have been expected in
respect of similar letting of similar premises in the same locality on the prescribed date (regard being had
when practicable to the rents actually obtained from any such similar lettings) with an addition, in the case of
a dwelling-house or public or commercial building erected after the prescribed date, of such amount as the
Board may think reasonable on account of increased amenities of the locality, or increased cost of building,
between the prescribed date and the date of completion of the building. . . .
The appellants, who were the owners and landlords of a large air-conditioned commercial building
completed early in 1954, in respect of which there had been no previous lettings, concluded tenancy
agreements of various portions of the building with the four respondent companies A, B, C and D. The
agreements with the respondents A and B were by deed for terms of 5 years and in each case made
provision for the payment of rent in a specified sum or the amount which the Port of Spain Rent
Assessment Board shall fix as the yearly standard rent of the premises and rights hereby demised
whichever shall be the smaller sum. The agreement with the respondent D was also by deed but for a term
of 3 years and specified the rent to be paid without reference to any alternative rent or to the fixing of the
standard rent by the Board. The agreement with the respondent C was for a term of 5 years at a rent which
was expressed as the amount which the . . . Board shall determine as the yearly standard rent of the said
premises and rights. This agreement went on to specify that until the standard rent of the premises was so
determined there should be paid by way of deposit on account of rent initially a specified monthly sum and
that when the full benefit of the air-conditioning was made available that sum would be increased to a further
specified figure, the increase in fact amounting to exactly 50% of the initial sum. The leases commenced on
various dates ranging from 28 November 1953, to 1 January 1958, and in respect of none of them had the
appellants made application to the Board prior to their commencement or at all to fix the provisional standard
rent as required by s 8 (2) of the Rent Restriction Ordinance, Cap 27, No 18 [T].
On 9 October 1958, the appellants summoned all four of the respondents to attend before the Rent
Assessment Board for the standard rents of their respective premises to be determined. At the hearing, the
appellants asked the Board to assess the standard rents at so much per square foot of rented space, on the
basis of securing for the appellants a return of 6 1/2% on the capital invested in the construction of the
building; and they also asked that there be similar but separate assessments in respect of the airconditioning on the basis of securing for the appellants a return of 6% on the capital invested in airconditioning the building. The Board made separate assessments for the air-conditioning but rejected the
method of computation proposed and in its reasons for the assessments it made, indicated that it had made
those assessments having regard to the amenities enjoyed by the tenants, without however specifying by
what means it arrived at the value of these amenities, and without any reference to any of the provisions of
the Rent Restriction Ordinance, Cap 27, No 18 [T]. The appellants appealed against all the assessments.
Held: (i) The fact that it was the duty of a landlord under s 8 (2) of the Rent Restriction Ordinance, Cap 27,
No 18 [T] before letting out premises, which were not previously let in the same category of letting, to make
application to the Board to fix the provisional standard rent and that, if he failed to do so, he was guilty of an
offence, did not invalidate or make unlawful any letting he made in breach of that section.
(ii) The words or are hereafter so let in s 7 of the Rent Restriction

462
Ordinance [T] were wide enough to embrace all lettings after the commencement of the Ordinance
regardless of whether a landlord made any application under s 8 (2); and the contention that it was
impossible to establish a standard rent after the commencement of the Ordinance in relation to premises not
previously let in the same category of letting, without prior application to the Board, was untenable.
(iii) It was wholly foreign to the provisions of s 9 of the Ordinance, that standard rents should be assessed at
a fixed figure per square foot of premises so as to guarantee to a landlord a net return of a fixed percentage
on the capital invested on the construction or on the air-conditioning of a building; and the Board was
justified in rejecting the contention that it should be so assessed.

(iv) The Board had misdirected itself in determining the standard rents on the basis of the amenities enjoyed
upon it by the respondents as tenants, and had failed to apply the principles enjoined upon it by s 9 (1) of
the Ordinance in determining those rents.
Per curiam: There was nothing contained in the provisions of the Ordinance to indicate that separate
assessments should have been made by the Board in respect of the air-conditioning.
Principles in Engvall v Ideal Flats, Ltd ([1945] 1 All ER 230, [1945] KB 205, 114 LJKB 249, 172 LT 134, 61
TLR 210, CA, 31 Digest (Repl) 693, 7842) and Alliance Property Co, Ltd v Shaffer ([1949] 1 All ER 312,
[1949] 1 KB 367, [1949] LJR 998, 65 TLR 111, 93 Sol Jo 181, CA, 31 Digest (Repl) 672, 7683) considered.
Appeals allowed. Applications remitted for hearing de novo.
Cases referred to
Chamberlain v Farr [1942] 2 All ER 567, 112 LJKB 206, CA, 31 Digest (Repl) 671, 7679
Insall v Nottingham corpn [1948] 2 All ER 232, [1949] 1 KB 261, [1949] LJR 156, 64 TLR 617, 92 Sol Jo 408,
CA, 31 Digest (Repl) 669, 7670
Engvall v Ideal Flats, Ltd [1945] 1 All ER 230, [1945] KB 205, 114 LJKB 249, 172 LT 134, 61 TLR 210, CA,
31 Digest (Repl) 693, 7842
Alliance Property Co, Ltd v Shaffer [1949] 1 All ER 312, [1949] 1 KB 367, [1949] LJR 998, 65 TLR 111, 93
Sol Jo 181, CA, 31 Digest (Repl) 672, 7683
Appeals
Appeals against decisions of the Port of Spain Rent Assessment Board determinig the standard rents of
commercial premises at Nos. 10A-12 Abercromby Street, Port of Spain. The facts and arguments appear in
the judgment of the court.
Malcolm Butt Q C and Hamel Wells (instructed by Pollonais and Blanc) for the appellants
Seemungal (instructed by T M Kelshall & Co) for the respondent Pan American World Airways Inc The other
respondents did not appear.
Cur adv vult
BLAGDEN J delivered the judgment of the court: These are appeals against orders of the Port of Spain
Rent Assessment Board made on 5 December 1958, in respect of premises forming part of a building known
as Nos 10A to 12 Abercromby Street in the City of Port of Spain. The appellants are the owners and
landlords of the building and the respondents are their tenants. The building is a modern one but those
parts of it with which we are concerned were completed before the coming into force of the Rent Restriction
(Exclusion of Premises) Order, 1954 [T]. It is not disputed that the lettings of portions of this building to the
respondents fall within the category of letting described in s 2 (d) of the Rent Restriction Ordinance, Cap 27,
No 18 [T], as a public or commercial building let unfurnished, but one unusual feature which this building
possesses is that it is air-conditioned throughout; and indeed, it is contended for the appellants that it is the
first building in the territory to be so equipped.

463
The appellants contracted tenancy agreements with the respondents, the essential features of which
are as follows:
Pan American Airways: An area of 2,305 sq ft on the ground floor for a period of 5 years from 28
November 1953, at the yearly rent of $7,608 or the amount which the Port of Spain Rent Assessment Board
shall fix as the yearly standard rent of the premises and rights hereby demised whichever shall be the
smaller sum, payable by equal monthly payments of $634 (by a deed dated 7 September 1956).
Hunter, Smith & Earle: An area of 5,154 sq ft (plus a further 134 sq ft non air-conditioned) on the second
floor for a period of 5 years from 7 November 1957, at the yearly rent of $12,585.60 or the amount which
the Port of Spain Rent Assessment Board shall fix as the yearly standard rent of the premises and rights
hereby demised whichever shall be the smaller sum, payable by equal monthly payments of $1,048.80 (by
a deed dated 12 April 1958).
Davies & Chislett: An area of 1,377 sq ft on the fourth floor (south-east) for a period of 5 years from 28
November 1953, at the yearly rent of . . . the amount which the Port of Spain Rent Assessment Board
shall determine as the yearly standard rent of the said premises and rights (by a written agreement to lease
dated 31 December 1953).
The rental reserved by this particular agreement was, however, made subject to certain provisional
arrangements expressed in the following terms: Subject as next hereinafter provided until the said yearly

standard rent of the premises and rights demised shall have been determined by the Port of Spain Rent
Assessment Board the lessees shall pay to the lessors by way of deposit on account of rent the monthly
sum of $184 . . .; and, so soon as the full benefit of the Air-conditioning Comfort Cooling System shall be
made available to the premises comprised in the lease the amount of the monthly deposit on account of rent
shall be increased from the sum of $184 to the sum of $276.
Dominion Oil, Ltd: An area of 1,218 sq ft on the fourth floor (north-east) for a period of 3 years from 1
January 1958, at the yearly rental of $2,923.70, payable by equal monthly payments of $243.60 (by a deed
dated 21 January 1958).
It will be observed that in three of these leases reference is made to the determination of the standard
rent by the Rent Assessment Board, but no steps were taken to effect such determination until 9 October
1958, when the appellants summoned the respondents to attend before the Rent Assessment Board on 30
October for the standard rents of their various premises to be determined.
The principles for the ascertainment of the standard rents of premises are set out in s 7 of the Rent
Restriction Ordinance, Cap 27, No 18 [T], which, in so far as it is relevant to the present appeals, enacts
that:
7. Until the standard rent of any premises in relation to any category of letting has been
determined by the Board under s 9, the standard rent of the premises in relation to that category of
letting shall be the rent at which they were let in the same category of letting on the prescribed date or,
where the premises were not so let on that date, the rent at which they were last so let before that
date, or, in the case of premises first so let after the prescribed date, the rent at which they were, or
are hereafter, first so let.
As none of these premises was let on or before the prescribed datenamely, for Port of Spain, 1
January 1940 (see s 2 (2) of the Ordinance)until such time as the Board made its determinations the
standard rents of these premises were the rents at which they were first let, that is to say, the rents reserved
in the various leases.

464
For the appellants it was contended that as the Rent Restriction Ordinance was passed on 9 October
1941, and by s 8 (2) it was made an offence for any person, intending to let premises in a category of letting
in which they had not been previously let, to fail to make application to the Board before the commencement
of such a tenancy to fix the provisional standard rent, any such letting after 9 October 1941, must be
regarded as prohibited and unlawful; and that therefore, when s 7 made reference to the standard rent as
being the rent at which the premises were first let after the prescribed date, it had in contemplation only such
lettings as commenced between 1 January 1940, and 9 October 1941; or, if they commenced after 9
October 1941, only such as were entered into after the fixing of the provisional standard rent in accordance
with s 8 (2).
We cannot accept this submission. What the relevant portion of s 7 says in regard to the standard rent
of premises first let after the prescribed date is simply this: Until the standard rent . . . has been
determined by the Board under section 9, the standard rent shall be . . . the rent at which they were, or are
hereafter, first so let. We decline to make the artificial construction contended for on behalf of the appellants
of the language of this section which is so simple and clear. The fact that it is the duty of the landlord under
the provisions of s 8 (2) before letting out his premises to make application to the Board to fix the provisional
standard rent, and that if he fails to do so he is guilty of an offence under the Ordinance and liable to a
penalty, does not, in our view, invalidate or make unlawful any letting he may make without complying with
the provisions of s 8 (2); this is implicit from a consideration of the provisions of ss 8 (4) and 10 (3) of the
Ordinance; the former empowers the Board to require a landlord to apply to it for a determination of the
standard rent and, in default of his doing so, to determine the standard rent as though he had so applied;
and the latter prescribes penalties but authorises orders for repayments of rent received by landlords in
excess of the standard rent. In the latter case the clear implication is that the excess rent is repayable on
the footing that the tenancy is lawful but payment of the excess rent is unlawful.
Moreover, the words or are hereafter, first so let in s 7 are so wide as clearly to embrace all lettings
after the coming into force of the Ordinance regardless of whether the landlord has made the necessary
application to determine the provisional standard rent or not; and we accordingly reject the argument that it
is impossible for a standard rent to be established after the coming into force of the Ordinance without prior
application to the Board under s 8.
The general scheme of the Ordinance is to restrict rents by prescribing standard rents and limiting
increases thereto, and penalties are also prescribed for infringements of certain of its provisions, but
nowhere does it enact that any tenancy agreement shall be invalidated or avoided by reason of any such
infringement and it would be strange indeed if any such effect could be implied when the result would be to
deprive the tenant of his tenancy and generally render nugatory one of the principal objects of the
Ordinance.

When the appellants applications came up for hearing on 30 October 1958, the Board was faced with
the situation envisaged by s 9 of the Ordinance. It had to determine the standard rents on the principles of s
7 modified in accordance with the provisions of s 9 (1). The Board had, therefore, to start with the figures of
the current rents reserved in the leases because these were the existing standard rents; and it had to make
such modifications to them as were authorised by the provisions of s 9 (1).
In the result, the Boards determinations produced all-round increases in the standard rents. Thus in
the case of Pan American Airways the standard rent was increased from $634 to $672 per month, in the
case of Hunter, Smith & Earle it was increased from $1,048.80 to $1,205.18 per month, in the case of
Davies & Chislett it was increased from $276 to $316.09 per month, and in the case of Dominion Oil, Ltd, it
was increased from $243.60 to $303.90 per month.

465
In drawing up its declarations in the form of certificates the Board showed a breakdown of these figures
between what was described as Rent and Air Condition.
The appellants appeal against all these assessments, on the grounds that the Boards decisions are
unreasonable or cannot be supported having regard to the evidence.
In strictness, as the procedure for appeals to the Full Court from the orders of Rent Boards follows that
laid down in the Summary Courts Ordinance, Cap 3, No 4 [T] (see ibid, s 6 (12)), the appellants should be
confined to their written grounds of appeal (ibid, s 141). But we have not hesitated to invoke the proviso to s
141 and allow counsel for both appellants and respondents to adduce other arguments, since issues of
substance are involved here, and it is in the plain interests of justice that the whole matter should be
thoroughly explored.
We have already indicated that when these applications came up for hearing, the Board had to take the
current rents reserved in the leases as the existing standard rents and then determine what modifications
should be made to these figures in accordance with the provisions of s 9 (1) of the Rent Restriction
Ordinance, the relevant portion of which is in the following terms:
9 (1). When the standard rent of any premises in relation to any category of letting is determined
by the Board, it shall be determined on the principles of section 7, modified as follows
(a) where the premises were not let in the same category of letting on or before the prescribed
date, the standard rent shall be the rent which, in the opinion of the Board, might reasonably have
been expected in respect of a similar letting of similar premises in the same locality on the prescribed
date (regard being had when practicable to the rents actually obtained from any such similar lettings)
with an addition, in the case of a dwelling-house or public or commercial building erected after the
prescribed date, of such amount as the Board may think reasonable on account of increased amenties
of the locality, or increased cost of building, between the prescribed date and the date of completion of
the building;
The Board was accordingly required to determine three matters:
(1) what would have been a reasonable rent for a similar letting of similar premises in the same
locality on 1 January 1940;
(2) whether the amenities of the locality had increased between 1940 and 1954, and, if so, what
would be a reasonable amount to add on to the rent so determined on this account; and
(3) whether the cost of building had increased between 1 January 1940, and 1954, and if so, what
would be a reasonable amount to add on to the rent so determined on this account.
The appellants, however, did not present their case on these lines. From the record of the proceedings
it is apparent that the appellants submission was that the standard rents should be assessed at so much
per square foot so that the figure arrived at would be such as would guarantee the appellants a net return of
6 % on capital invested in the construction of the building and 6% on capital invested in air-conditioning
the building. These considerations are wholly foreign to the provisions of s 9 of the Ordinance. Rent
Restriction legislation is not and never was designed to secure economic rents for landlords, nor was it
designed to adjust existing bargains made between landlords and tenants for economic reasons. This is to
be gathered from a consideration of the legislation on this subject over the past twenty-six years and from
the decisions in such cases as Chamberlain v Farr [1942] 2 All ER 567, 112 LJKB 206, CA, 31 Digest (Repl)
671, 7679) and Insall v Nottingham Corpn ([1948] 2 All ER 232, [1949] 1 KB 261, [1949] LJR 156, 64 TLR
617, 92 Sol Jo 408, CA, 31 Digest (Repl) 669, 7670).

466
It is clear from the reasons given by the Board that it rejected the principles and arguments put forward
by the appellants for determining the standard rents. What is less clear is on what principles it founded its
decisions. Nowhere in its reasons is there any reference to s 9 (1) of the Ordinance, or for that matter any

reference to the Ordinance at all. Had the matter rested there, it might have been possible to adopt the
passage that appears in Megarry On The Rents Acts (8th Edn) at p 32, which reads as follows:
It will not be concluded that the judge did not have a point in mind merely because he did not refer
to it in the notes of his reasons in his judgment. (See Store v Pardoe (1952), CPL 481; 160 EG 4.)
The Board, however, went on to make certain observations which give some indication of the factors
which it took into consideration in coming to its conclusions. Thus, in one passage, the Board says that it
felt itself unable to accept the appellants request to determine the standard rent in accordance with the
principles of guaranteeing them a return on capital invested, for a number of reasons, the first two of which
were expressed to be: (1) The main guide of any assessment must be the amenities enjoyed by the tenants
and not the soundness or the cost of the premises occupied; and (2) The cost of construction is no sure
guide to what the tenant enjoys in return for rents paid. A later passage reads: The Board felt that the rent
paid by Pan American World Airways was a fair one in return for the amenities enjoyed and left it as it was.
The rents of the other tenants were varied upward by 10%.
These passages indicate that the Board made its assessment having regard to the amenities enjoyed
by the tenants; exactly how it valued these amenities is not clear, but it would certainly seem that no attempt
was made whatever to determine what would have been a reasonable rent for a similar letting of similar
premises in the same locality on 1 January 1940; and no account was taken of either the improvement in the
amenities of the locality (if any) or the increase in the cost of building between 1 January 1940, and 1954. In
these circumstances it seems to us that the Board has not applied the principles enjoined upon it by s 9 (1)
of the Ordinance. The decisions, therefore, cannot stand and the applications must be remitted to the Board
for adjudications de novo.
As the matter is being remitted to the Board we think it may be of assistance if we made a few
observations on the question of air-conditioning, for the Board, at the instigation of the appellants or
otherwise, made a separate assessment in respect of the air-conditioning at one dollar per square foot. The
Board gave no indication how or why it adopted that method of computation and we can find nothing in the
provisions of the Ordinance which indicates that the question should be treated in that manner.
We know of no case in which air-conditioning was called in question but we consider that the case of
Engvall v Ideal Flats, Ltd ([1945] 1 All ER 230, [1945] KB 205, 114 LJKB 249, 172 LT 134, 61 TLR 210, CA,
31 Digest (Repl) 693, 7842), which dealt, inter alia, with central heating, provides an apt analogy. In that
case the charge for central heating was included in the rent in much the same way as the charge for airconditioning is included in the rent here, as appears from the terms of the leases.
A further case which gives assistance in this regard is that of Alliance Property Co, Ltd v Shaffer ([1949]
1 All ER 312, [1949] 1 KB 367, [1949] LJR 998, 65 TLR 111, 93 Sol Jo 181, CA, 31 Digest (Repl) 672, 7683).
In that case it was held that an extra sum of 100 paid under an agreement supplemental to the lease in
respect of works and the cost of management was part of the monetary compensation payable by the tenant
to his landlord for the grant and therefore the standard rent of the premises consisted of the sum of the
amounts payable under the lease and the supplemental agreement.
In view of our decision stated previously, the other points argued by counsel do not call to be dealt with.
The order of the court is that these applications be remitted to the Board

467
for adjudications de novo in accordance with the provisions of the Rent Restriction Ordinance. The
appeals are allowed and the orders made by the Board set aside but, in the circumstances of this case, we
make no order as to costs.
Appeals allowed. Applications remitted for hearing de novo.

(1959) 1 WIR 468

Albert Waldron v Joseph Smith

SUPREME COURT OF THE WINDWARD ISLANDS AND LEEWARD ISLANDSCIVIL APPELLATE JURISDICTION
ALLEYNE AG J
16, 19 MAY 1959

Rent restriction Standard rent Determination of standard rent by Rent Commissioners with effect from a
date prior to their decision Rent Restriction Ordinance, 1954, No 15 [St Christopher Nevis and Anguilla], s
11 Rent Restriction (Amendment) Ordinance, 1956, No 6 [St C].

The Rent Commissioners of the Colony of St Christopher Nevis and Anguilla purporting to act under s 11 (1)
of the Rent Restriction Ordinance of that Colony gave a decision on 24 November 1958, ordering that the
standard rent of premises occupied by a tenant be determined and fixed as from 1 June 1958, ie a date prior
to their determination of the standard rent. The landlord appealed.
Held: The Rent Commissioners had no power to determine the standard rent of the premises with
retroactive effect.
Appeal allowed. Case remitted.
Case referred to
Bowness v ODwyer [1948] 2 All ER 181, [1948] 2 KB 219, [1948] LJR 1774, 64 TLR 367, 31 Digest (Repl)
654, 7573
Appeal
Appeal by a landlord from a decision of the Rent Commissioners of the Colony of St Christopher Nevis and
Anguilla given on 24 November 1958, ordering that the standard rent of premises which had originally been
$17 per month be reduced to $12 per month with effect from 1 June 1958.
The relevant sections of the Rent Restriction Ordinance [St C] are:
5 Subject to the provisions of sections 9, 10 and 11 of this Ordinance, until the standard rent of any
premises in relation to any category of letting has been determined by the Rent Commissioners under
sections 6 and 7 of this Ordinance, the standard rent of those premises in relation to that category of
letting shall be the rent at which they were let in that category of letting on the prescribed date or,
where the premises were not let on that date, the rent at which they were last so let, or, in the case of
premises first so let before that date after the prescribed date, the rent at which they were, or are
hereafter first so let:
Provided that in the case of premises let at a progressive rent payable under a tenancy agreement
or lease the standard rent shall, until the tenancy is determined, be the maximum rent payable under
the tenancy agreement or lease.
7. (1) The landlord or the tenant of any premises to which this Ordinance applies may at any time,
unless the standard rent of such premises has already been determined by the Rent Commissioners,
apply to the Rent Commissioners to determine the standard rent thereof.

468
11. (1) The Rent Commissioners may, on the application of a tenant, sanction a decrease of the
rent of any premises to which this Ordinance applies and may on the hearing of such application take
into consideration inter alia the locality in which such premises is situate and the state of repairs in
which such premises is maintained.
12. On the hearing of any application under sections 6, 7, 10 or 11 of this Ordinance, the Rent
Commissioners shall give all interested parties an opportunity of being heard and of adducing
evidence and shall try the whole matter of the application and give judgment or make any order
thereon, and shall give any direction they may consider necessary to enable them to give a final
judgment or to make an order, and may from time to time adjourn the hearing of the application.

F C Adams for the appellant

The respondent in person.
ALLEYNE Ag J. This is an appeal against a decision of the Rent Commissioners given on 24 November
1958, in case No 30 of 1958, ordering that the standard rent of premises occupied by a tenant be
determined and fixed as from 1 June 1958, i e a date prior to the date of determination.
The tenant had first been paying a rent of $18 per month which had by agreement been reduced to $17
per month prior to the application by him to the Rent Commissioners. The Commissioners reduced the rent
to $12 per month with effect retroactively. Whether they had power so to do is the sole question of this
appeal.
The appeal is brought under s 13 of the Rent Restriction Ordinance, 1954 [St C], by summons in
chambers but in view of the request of counsel that a ruling be given on the point raised for further guidance
the matter has been adjourned into court for formal decision.
By s 7 of the Ordinance either the landlord or the tenant of any premises to which the Ordinance applies
may at any time, unless the standard rent of such premises has already been determined by the Rent
Commissioners, apply to them to determine the standard rent.

By s 5 of the Ordinance, until the standard rent has been determined the standard rent shall be the rent
at which the premises were let on 3 September 1939 (the prescribed date), or where the premises were not
so let on that date, the rent at which they were last so let, i e previously to that date, or, in case the premises
were first let after the prescribed date, the rent at which they were first let.
The standard rent is therefore calculable according to a formula. The problem is to determine the effect
of the words until the standard rent . . . has been determined. Let us suppose the premises had been let
at one of the dates mentioned in s 5. Then before a determination by the Rent Commissioners under s 7
there is an ascertainable standard rent. I construe the words quoted to mean that up to the time of the fixing
of a standard rent by the Rent Commissioners such ascertainable standard rent is for all purposes the
operative standard rent and that therefore the standard rent determined by the Rent Commissioners is not
retroactive.
This is of course subject to what is provided in s 5 itself, that the provisions of ss 9, 10 and 11 prevail.
Sections 9 and 10 permit certain increases over the standard rent and s 11 permits the Commissioners to
sanction a decrease of the rent of any premises. But as Evershed LJ, said in Bowness v ODwyer ([1948] 2
All ER 181, [1948] 2 KB 219, [1948] LJR 1774, 64 TLR 367, 31 Digest (Repl) 654, 7573) ([1948] 2 KB at p
225):
. . . the scheme of the Acts appears to be that the tribunal has power to alter the existing contract
for the future, but not restrospectively, by reducing the rent payable under the contract.

469
I have ordered that the case be remitted to the Commissioners with directions to determine the standard
rent in accordance with s 5 of the Ordinance; further that the landlord submit statements of particulars
mentioned in s 8 in order to facilitate the making of a determination by the Commissioners. The tenant may
further be heard on these issues.
There will be no order as to costs.
Appeal allowed. Case remitted.
F C Adams (for the appellant); the respondent in person.

(1959) 1 WIR 470

Catherine Herbert v R
COURT OF APPEAL FOR THE WINDWARD ISLANDS AND LEEWARD ISLANDSCRIMINAL APPELLATE JURISDICTION
HENRIQUES CJ, LEWIS J AND ALLEYNE AG J
24, 26 FEBRUARY 1959

Criminal Law Wounding with intent to do grievous bodily harm Conviction Appeal No copy of judges
summing up available Defence described by trial judge in his report as a vague and nebulous suggestion
made by counsel and not put to the jury Misdirection as to onus of proof of intent Invitation to apply
proviso to s 4 (1) of the Criminal Appeal Act, 1907 [U K] Observations as to counsel being in possession of
a copy of the judges report.
Case referred to
R v Steane [1947] 1 All ER 813, [1947] KB 997, 32 Cr App Rep 61, [1947] LJR 969, 177 LT 122, 111 JP 337,
63 TLR 403, 91 Sol Jo 279, 45 LGR 484, 2nd Digest Supp
Appeal
Appeal by Catherine Herbert who was convicted on 10 November 1958, by the Supreme Court of the
Windward Islands and Leeward Islands (St Christopher Circuit) of wounding Catherine Jeffers with intent to
do her grievous bodily harm and sentenced to four years imprisonment with hard labour. The facts appear
in the judgment.
F C Adams for the appellant
S H Graham (instructed by Crown Attorney) for the respondent
HENRIQUES CJ delivered the judgment of the court: The appellant was convicted in the Supreme Court of
the Leeward Islands and Windward Islands sitting in the St Christopher Circuit on 10 November 1958, of
wounding one Catherine Jeffers with intent to do her grievous bodily harm, and was sentenced to

imprisonment for four years with hard labour. In view of the points which have been taken on this appeal, it
is only necessary to summarise the facts shortly.
On the day of the alleged incident which gave rise to the charge against the appellant, namely, 12
August 1958, there was a quarrel between one Daniel Whyte who at the time was living with the appellant,
and Catherine Jeffers, during which blows were exchanged between the two parties. Subsequently, Jeffers
and Whyte returned to the house where the appellant resided. The appellant was then standing at the door.
According to the evidence given by Jeffers at the trial, words were exchanged between Whyte and herself.
Then the appellant and the woman Jeffers heatedly addressed each other. Jeffers at the time was standing
in a position with her back towards the house of the

470
appellant. The appellant was seen to strike two blows across the shoulders of Jeffers who turned
around only to receive more blows across her face from an instrument held in the hand of the appellant. At
the time of the infliction of the injuries, the appellant was alleged to have said to Jeffers, I am going to kill
you, you f-hole.
Jeffers account in the witness box as to the manner in which she received her injuries was not entirely
borne out by two other witnesses called by the prosecution, both of whom spoke as to an expression on the
part of Jeffers of her intention to enter the house of the appellant and a fight between the two women in
which Whyte intervened to part them and that as they were parted, Jeffers complained that she had been
cut by the appellant.
Jeffers subsequently received medical attention at the hospital where she was found to be suffering
from five incised wounds, the most severe of which stretched across the base of the neck and was about
eight inches long and two inches deep, and extended down to the spinal column. As a result of her injuries,
she was detained in hospital until 1 September.
In an unsworn statement at her trial, the appellant stated that Jeffers expressed her intention of entering
the house, using force if necessary; that she subsequently assaulted the appellant, and in the course of a
tussle the prosecutrix was wounded.
Counsel for the appellant argued two grounds of appeal:
(1) that the learned judge failed to direct the jury as to the rights of an accused person in defending
his home or premises, or in preventing the virtual prosecutrix from entering by force into the house of
the accused;
(2) that the learned judge misdirected the jury as to the burden of proof when dealing with the
question of intent and the inferences to be drawn from the consequences of wilful acts in a charge
where intent is a necessary ingredient of the offence.
Unfortunately there was no shorthand note of the learned judges summing up available to the court and
this has rendered the task of the court more difficult as the gravamen of the appellants complaint was
directed to the summing up. The learned trial judge has however included in his statutory report a summary
of his directions to the jury on the points involved in the appeal.
Opening his case counsel for the appellant referred to the judges report, which had apparently been
supplied to counsel on both sides. While the court appreciated the embarrassment to counsel of attempting
to discuss the summing up in the absence of any official record of it, the court wishes to point out that the
judges report is intended purely for the information of the judges of the appellate court and counsel is not
entitled to a copy of it. Counsel proceeded to argue the appeal without further reference to the judges
report.
He submitted in relation to his first ground that the learned trial judge misconceived the nature of the
defence and as a result omitted to put the same to the jury in the manner in which it was raised or to direct
the jury as to the law relating to such defence.
The defence was, as evidenced by the cross-examination of the virtual prosecutrix Jeffers, the witness
Whyte, and the appellant in her unsworn statement, that the prosecutrix was endeavouring to make an entry
by force into the home of the appellant and that the appellant repelled her by force and in doing so inflicted
certain injuries upon the prosecutrix.
In two passages of his report the learned trial judge had this to say on the above aspect of the case:
The evidence for the defence did not disclose, nor can it be argued with any degree of plausibility,
that the accused wounded the woman Jeffers in the protection or defence of her property, home,
goods or chattels or even that the

471
accused wounded the woman Jeffers because she was trying to dispossess her of her property.
****

At the hearing, the defence was not that the accused inflicted the injury on the woman Jeffers in
defence of her home or property or from dispossessing the accused. The defence was not conducted
on this footing at all. As I understood the defence, the accused was standing at her door, the woman
Jeffers assaulted her and by way of retaliation or defence the accused cut the woman Jeffersthe
ordinary defence of self-defence. I accordingly directed the jury as to the law governing self-defence.
Apart from the cross-examination of Jeffers which gave a clear indication of what the defence would be
urging, there was the evidence of Daniel Whyte, another witness for the prosecution, to the effect that the
appellant said: All you looking to come back in the house, but dont come back because I am going to
action all you for the things you break up. He went on to say: Jeffers said if I want to come back I could do
so. Then Jeffers went forward to accused. I saw accused and Jeffers holding on.
The appellant herself in her statement from the dock put forward that: Jeffers said, I come in already
and I can come in again because I can take care of you. I was standing by the door. She plunged me and
we held on. She gave me blows, bite my finger and I cut her. That is all.
In our opinion this evidence was sufficient basis for the defence which appellants counsel contends that
he raised and cannot be considered to be a vague or nebulous suggestion made by counsel as it is
described by the learned trial judge in his report.
It was clearly the duty of the judge to put this defence to the jury and give them the necessary directions
in law regardless of his personal opinion as to its merits or otherwise. The learned trial judge in his report
states plainly that he did not do so for reasons with which we are unable to agree.
The vital omission would of itself be sufficient ground for allowing the appeal, but there was further
criticism of the summing up with regard to the direction in law as to intent. The learned trial judge says in his
report that on the question of intent the following were his directions which he had previously reduced into
writing:
I must tell you that intention is not something capable of direct proof, it can only be implied from
overt acts. It cannot be handled or touched. The rule of law is that every man is taken to intend the
natural and probable consequences of his or her own acts.
The Crown, having alleged an intent to do a particular thing, must prove the intent as laid and the
evidence or such reasonable inferences or deductions that can reasonably be made from the whole
evidence must satisfy you that such intent is proved beyond reasonable doubt. If a person of sound
mind, reason and memory does an act the natural or probable consequences of which would be to
bring about a certain result thereby causing or inflicting serious bodily injury on another and if such
person gives no reasonable explanation or adduces no evidence, which must be to your satisfaction,
then the prosecution would have discharged its onus or burden.
On the other hand, if from the nature of the defence there is a possibility of a reasonable doubt as
to the intent of the accused at the time of commission of the crime for which she is charged then the
prosecution would not have satisfied you as to the intent as laid and you would then have to consider
wounding simpliciter.
The learned trial judge did say that the Crown having alleged intent must prove it to the satisfaction of
the jury but unfortunately went on to use language

472
to the effect that if a person of sound mind, reason and memory does an act the natural and probable
consequence of which was a certain in jury and such in jury resulted, if such person gives no reasonable
explanation or adduces no evidence, which must be to your (the jurys) satisfaction, then the prosecution
would have discharged its onus or burden. From this the jury might well have understood that having
before them the natural consequences of an act it was then for the defence to negative the intent. The
learned judge relied on the case of Steane ([1947] 1 All ER 813, [1947] KB 997, 32 Cr App Rep 61, [1947]
LJR 969, 177 LT 122, 111 JP 337, 63 TLR 403, 91 Sol Jo 279, 45 LGR 484, 2nd Digest Supp), where the
following passage occurs ((1947), 32 Cr App Rep at p 66):
No doubt if the prosecution prove an act the natural consequences of which would be a certain
result and no evidence or explanation is given, then a jury may, on a proper direction, find that the
prisoner is guilty of doing the act with the intent alleged.
This means no more than that upon a prima facie case being set up, if nothing more is said, it is open to
the jury to give an affirmative verdict. There is neither any presumption of law compelling the jury to draw
the inference of intent nor any burden cast on the defence to explain reasonably or to the satisfaction of
the jury. The explanation of the accused, if any, is an element to be taken into consideration by the jury in
determining whether the prosecution has discharged its burden of proving intent.

In our view the direction given by the learned judge was not in accord with the decision in Steane
([1947] 1 All ER 813, [1947] KB 997, 32 Cr App Rep 61, [1947] LJR 969, 177 LT 122, 111 JP 337, 63 TLR
403, 91 Sol Jo 279, 45 LGR 484, 2nd Digest Supp), and amounted to a misdirection.
We were invited to apply the proviso to s 4 (1) of the Criminal Appeal Act, 1907 [UK], but in view of the
grave nature of the omission of the learned trial judge to put the defence to the jury we consider that this is
not a proper case in which to apply the proviso.
The appeal is allowed and the conviction quashed.
Appeal allowed.
F C Adams (for the appellant); S H Graham (for the respondent).

(1959) 1 WIR 473

John Bramble v R
COURT OF APPEAL FOR THE WINDWARD ISLANDS AND LEEWARD ISLANDSCRIMINAL APPELLATE JURISDICTION
HENRIQUES CJ, ALLEYNE AND MANNING AG JJ
24, 25, 26 NOVEMBER 1959

Criminal law Murder Deposition of witness dangerously ill and unable to travel Crowns case based
substantially on deposition Alleged defects in deposition No evidence that deposition read over to
witness Admissibility Observations by court as to duty of trial judge to warn jury in a case where the
deposition of a witness is read at a trial Sections 60 and 206-210 of the Magistrates Code of Procedure
Act, 1927, Cap 61 [Leeward Is].
The appellant was charged in an indictment with the offence of murder, the particulars of which were that on
25 July 1959, at Ottos in the Colony of Antigua a person unknown murdered George Blake, the appellant on
the same date being present, aiding, abetting and assisting the unknown person to commit the said offence.
The only evidence connecting the appellant with the alleged crime was a deposition taken from the
deceased in hospital shortly before his death. The appellant was present when the deposition was taken
and cross-examined the

473
deponent. At the trial various grounds of objection referred to in the judgment were taken to the admissibility
in evidence of the deposition. In particular it was contended that the deposition did not fulfil the
requirements either of s 60 or of ss 206-210 inclusive of the Magistrates Code of Procedure Act, 1927, Cap
61 [LIs]. The trial judge overruled the objections and admitted the deposition in evidence.
Held: (i) the evidence of a witness when taken by the magistrate at a preliminary inquiry does not become a
deposition until it has been read over to and signed by the witness as required by s 60 of the Act;
(ii) Section 207 of the Act requires a deposition taken under the provisions of that section to be taken in the
manner prescribed by this Act, and such a deposition must therefore conform to the provisions of s 60;
(iii) that before a deposition can be admitted in evidence under the provisions of s 206, evidence must be
given that the deposition of the witness was read over to, and signed by, or at least assented to, by the
witness;
(iv) that the heading or caption forms an integral part of a deposition, and, in accordance with the principle
laid down in R v Curtis ((1904), 21 TLR 87, 14 Digest (Repl) 222, 1852), the deposition ought not to have
been admitted in evidence;
(v) the notice given to the appellant fulfilled neither the requirements of s 206 nor of s 208 of the Act and
ought to have been rejected by the trial judge. The notice was also defective in that it failed to specify the
time of the proposed examination, the offence in respect of which it was being taken and the fact that the
offence was an indictable one.

Per curiam: Before disposing of the question of the deposition it might not be amiss to refer to what appears
to be the modern tendency with regard to the reading of a deposition at a trial. In R v Linley ([1959] Crim LR
123) the question of the reading of the deposition of the principal witness in a case of robbery with violence
where the witness was so ill as to be unable to travel, was canvassed. It was conceded by both counsel in
that case that under the section in English Law, corresponding to s 206 of Cap 61 [LIs], the court had a
discretion as to whether it would permit any particular deposition to be read in evidence, even though it
fulfilled the requirements of the section. It was submitted by counsel for the defence in that case that the
evidence was substantially the case for the prosecution and would inevitably have to be challenged.
Counsel for the Crown argued inter alia that the discretion to exclude should only be exercised where
injustice to the accused was manifest, perhaps, for instance, in capital cases. Ashworth J, held that it would
not be right to permit the deposition of the witness to be read at the trial. He is further stated to have
observed, in the course of argument, that in a case of rape, he would have thought the evidence of the
prosecutrix ought not to be read.
Should a judge in any particular case exercise his discretion and admit the deposition then it may well be
that an obligation is cast upon the trial judge in his summing up to draw to the attention of the jury that the
evidence has come to them in a form where they have not had an opportunity of seeing the witness give his
evidence, of hearing what he has to say, of observing his demeanour in the witness box, and of themselves
exercising the right, if they choose, to ask the witness questions, and further of hearing the witness crossexamined by the accused, if he so desires. In other words the jury should be directed to view such evidence
with caution. Such a direction we suggest might obviate any possibility of an injustice being done to the
accused by the reading of the deposition.
Appeal allowed.
Cases referred to
R v Holloway (1901), 65 JP 712, 14 Digest (Repl) 222, 1850
R v Prestridge (1881), 72 LT Jo 93, 14 Digest (Repl) 222, 1849

474
R v Curtis (1904), 21 TLR 87, 14 Digest (Repl) 222, 1852
R v Shurmer (1886), 16 Cox, CC 94, 17 QBD 323, 55 LJMC 155, 55 LT 126, 50 JP 743, 34 WR 656, 2 TLR
737, 14 Digest (Repl) 222, 1846
R v Harris (1918), 26 Cox, CC 143, 82 JP 196, 14 Digest (Repl) 222, 1847
R v Leung Tai (1920), 15 Hong Kong LR 62, 14 Digest (Repl) 223, *1155
R v Linley [1959] Crim LR 123
Appeal
Appeal against conviction by the appellant who was convicted before the Supreme Court of the Windward
Islands and Leeward Islands (Antigua Circuit) on 14 October 1959, of the murder of George Blake and
sentenced to death.
Sections 60 and 206-210 of the Magistrates Code of Procedure Act, 1927, Cap 61 [LIs], are as follows:
60. As each witness gives his evidence the material part of it shall be taken down in writing by the
Magistrate in narrative form, or, if and so far as the Magistrate may think fit, in the form of question and
answer: Provided that if the Magistrate is from any cause unable to take down the evidence in writing,
the same shall be taken down in writing by the Clerk of the Court under the Magistrates direction.
The evidence of a witness so taken down shall be read over to the witness and shall be signed by
him and by the Magistrate, and such evidence so taken down and read over and signed as aforesaid
shall be deemed to be a deposition.
206. If upon the trial of the person accused it be proved on the oath of any reliable witness that
any person whose deposition has been taken is dead, or so ill as to be unable to travel, or is absent
from the Colony, and if it be also proved that such deposition was taken in the presence of the accused
and that he or his counsel or solicitor had a full opportunity of cross-examining the witness then if the
deposition purports to be signed by the Magistrate by or before whom the same purports to have been
taken it shall be read as evidence in the prosecution without further proof thereof unless it be proved
that such deposition was not in fact signed by the Magistrate purporting to have signed the same.
207. If it is proved upon oath before any Magistrate that any person is dangerously ill and unable
to travel, or is about to leave the Colony for a period extending beyond the time when the accused if
committed for trial would be tried and that such person is able and willing to give material information
as to any offence which such Magistrate is not empowered to try summarily and with which any person
has been charged before a Magistrate (whether the preliminary enquiry has or has not been held or is

in progress, but not after the accused has been discharged) unless by order of a Judge the Magistrate
may take the deposition of such person at the place where such person is lying sick or if such person
is about to leave the Colony as aforesaid at the Magistrates Court House, in the manner prescribed by
this Act, and shall, after taking it, sign it, adding to it by way of heading a statement of the reason for
taking it, and of the day and place on and at which it was taken, and of the names of the persons, if
any, present at the taking thereof.
208. Whenever it is intended to take any such deposition as aforesaid, reasonable notice that it is
intended so to be taken shall, if the accused is in prison, be served upon him in prison, or if he is on
bail, shall be either served upon him or left at his last or most usual place of abode. If the accused is
in prison, any Magistrate shall by an order in writing direct the gaoler having the custody of the
accused to convey him, or cause him to be conveyed to the

475
place where the deposition is to be taken, for the purpose of being present when the same is taken,
and to take him back to prison when it has been taken, but no accused person shall be taken to any
such place (other than the Magistrates Court House) for such a purpose without his consent. The
expenses of such conveyance shall be paid out of the funds applicable to the expenses of the prison
from which the accused is taken.
209. If such deposition relates to an offence, the preliminary enquiry into which has ended, the
Magistrate taking it shall send it to the Registrar to be placed with the other depositions taken in the
case and if it relates to an offence with which some person has been charged, and as to which a
preliminary inquiry is in progress, the Magistrate shall deal with it like any other deposition taken in the
matter under preliminary inquiry; but such person as aforesaid so making a deposition as aforesaid
shall not be called upon to enter into a recognisance to give evidence at the trial of the accused.
210. Every deposition so taken shall be a deposition taken in the case to which it relates, and shall
be admissible in evidence on the same conditions as other depositions: Provided that it shall be
admissible against the accused, although it may have been taken in his absence, and may not have
been read over to the witness in his presence, and although neither he nor his counsel or solicitor had
an opportunity of cross-examining the witness, if it is proved that the accused having received such
notice as aforesaid that such deposition was about to be taken, refused or neglected to be present, or
to cause his counsel or solicitor to be present when it was taken, or that it was taken at the
Magistrates Court House: Provided also that if it is proved that the person whose evidence has been
taken as aforesaid has so recovered from his sickness or returned to the Colony as to be able to be
present at the Circuit Court before which the accused is tried such deposition so taken as aforesaid
shall not be read.

E E Harney and C E Francis (instructed by C E Francis) for the appellant

W E Jacobs (Attorney-General) and C O R Phillips (instructed by C O R Phillips) for the respondent
HENRIQUES CJ delivered the judgment of the court: The appellant, John Bramble, was convicted on a
charge of murder at the October Criminal Assizes of the Supreme Court of the Leeward Islands and
Windward Islands, Antigua Circuit, on 14 October 1959, and there and then sentenced to death. On 24
October 1959, he gave notice of appeal to this court against the said conviction and sentence on the several
grounds set out in the notice under three main heads which will later be referred to in greater detail.
The indictment charging the appellant with murder gave the following Particulars of Offence:
A person unknown, on the 25th day of July 1959, at Ottos in the Colony of Antigua, murdered
George Blake. John Bramble, on the same date, was present, aiding, abetting and assisting the said
person unknown to commit the said crime.
The evidence led by the Crown disclosed the following facts. About 3 am on 19 July in consequence of
a report received at Police Headquarters, St Johns, Antigua, Corporal Allen proceeded to the premises of
the appellant Bramble at Ottos. In the yard Allen found a man named George Blake lying on his back with
several wounds about his body. He took him to the hospital. The medical examination revealed that Blake
was suffering from seven wounds. Two of these were clean-cut parallel wounds, severing the muscles of
the left arm above the elbow; one was an incised wound just below the left elbow; one was on the elbow;
one was an incised wound just below the left elbow; one was on the lobe of the left ear; one above the left
eyelid; one was on the outer side of the left wrist. The seventh wound was in the abdomen, over the right
costal margin; it had cut through the cartilage of the seventh rib, opening the

476
pleural space which it had penetrated; it had also penetrated the abdomen, and had caused an incised
wound at the extreme edge of the lower lobe of the right lung. This injury to the lung resulted in pneumonia,

and Blake died on 25 July. The evidence as to how Blake came to be on the premises of Bramble was
derived from statements made by Bramble to persons at the scene and by a fuller statement made by
Bramble to the police. Bramble said that about 1 am on 19 July he was roused from sleep by the barking of
his dogs; he got up and went out and saw the shadow of a person dodging behind a tree. He threw stones
at he spot and saw a man come from a tree with a cutlass. The man ran and eventually jumped into a
quarry near Brambles house. Bramble went into the quarry with one Edwards, and found the man crouched
under a tree with blood on his clothes. they took him out of the quarry and placed him lying down in
Brambles yard. The police were sent a message by telephone and Corporl Allen arrived. The man turned
out to be George Blake. Three witnesses corroborated Brambles statement that he and one Edwards
brought Blake from the quarry to Brambles yard.
The evidence as to how Blake received the wounds was confined to the evidence of Blake himself.
Before his death, and in the presence of Bramble, he made a deposition before a magistrate to the effect
that on 18 July he had stolen a goat and was skinning it and chopping the meat near some bushes. Dogs
were barking. Then Bramble came with a cutlass and chopped him on his hand, neck and back. Another
man came and cut him on his belly with a machette. He couldnt say how many other men came. He lay
down and couldnt move until the police van came and took him away.
The appellant cross-examined Blake who said in answer to the appellants questions that he knew the
appellant in Montserrat and also in Antigua; that on the night in question the appellant and some other
people came at him; that the appellant was the first and stuck him first; that he told the appellant not to
mash him up; that he did not know the other men nor could he say how many men came at him.
Around this statement and the evidence leading to its introduction in evidence the main controversy in
the case centred, and the same controversy is the basis of this appeal.
It was submitted on behalf of the appellant that the evidence of Samuel Harvey Brookes, Assistant
Superintendent of Police, a witness not on the depositions who testified at the trial to serving a notice upon
the appellant of intention to take the deposition of Blake and to the taking of evidence from Dr Margetson
prior to this, was inadmissible without notice of additional evidence having been given. Further it was
submitted that the evidence of Dr Margetson as to the condition of Blake prior to the taking of his deposition
was fresh evidence of which notice to adduce should also have been given. (Dr Margetson had given
medical evidence eon deposition at the preliminary inquiry and at the trial as to Blakes injuries). It was also
submitted that his additional evidence was hearsay and it was inadmissible for Dr Margetson to repeat what
he had said to the magistrate before Blakes deposition was taken, in order to show that the magistrate had
proof of Blakes being ill and unable to travel at that time as s 207 required.
The substantial submission on the first ground, namely, that evidence was wrongly admitted, was that
the evidence of George Blake taken at the Holberton Hospital on 21 July 1959, was in admissible. Blake
was admitted to hospital on 19 July 1959, and died at 5.45 am on 25 July 1959. At 7.30 pm on 21 July
1959, at Holberton Hospital, the magistrate took evidence from Dr Margetson after which Assistant
Superintendent Brookes served on the appellant a notice handed to him by the magistrate that it was
proposed to take the deposition of Blake. The notice was in the following terms:

477
John Bramble
of
Ottos.
Take notice that it is intended to take the deposition of George Blake who alleges that he was
wounded by you on the night of Saturday 19th of July 1959.
He is dangerously ill at the Holberton Hospital and is unable to travel.
Given under my hand the 21st day of July 1959.
G A Redhead,
District Magistrate.
The notice was served upon the appellant at 7.45 pm at Police Headquarters where the appellant was
in custody. Brookes asked him if he had any objection to attending the hospital to be present when the
deposition of George Blake was taken, to which the appellant replied that he wanted to be present because
(he) did not know anything about this thing. Brookes took the appellant to the Holberton Hospital having
served him with the notice about eight minutes before he returned with him to the hospital.
The magistrate proceeded to take the deposition of George Blake at 8.15 pm. The deposition was
begun on the printed form in use for depositions in ordinary cases and ended on a plain second leaf. On yet
a third paper the following appeared:
The reason for taking this Deposition is that George Blake is dangerously ill and unable to travel.
Taken at Holberton Hospital this 21st day of July 1959.

Names of persons present: The accused, John Bramble, Superintendent Prosper, Inspector
Brookes, Constables Greaux and Eaton.
G A Redhead,
Acting Magistrate.
21/7/59.
The form used bore a printed caption which was duly completed to read as follows:
In the Magistrates Court.
The Deposition of George Blake Taken on Oath this 21st day of July 1959, in the presence and
hearing of John Bramble who stands charged before me George Anthony Redhead Esquire, the
undersigned Acting Magistrate with having committed an offence under Section 17 of Cap 41 of the L
Is which deponent says as follows:
The magistrate who took this purported deposition left the Colony for the Virgin Islands on 24 July and
the preliminary inquiry into a charge of murder made against the appellant was taken by another magistrate.
With other depositions relating to the last mentioned charge that of George Blake came before the court at
the trial, by what process it is not clear, because counsel for the appellant objects that it was never put in nor
referred to at the preliminary inquiry.
This deposition of the deceased was read at the trial over the strong protests of counsel for the defence
and constitutes the sole basis upon which a conviction could have been obtained. The main question for
determination by this court is therefore whether the evidence of the deceased on deposition was properly
admitted.
The learned trial judge intimated that before the deposition of the deceased could be received in
evidence the Crown would be required to prove to his satisfaction that it had been properly taken in
accordance with ss 207 et seq of the Magistrates Code of Procedure Act, Cap 61 [L Is]. The Attorney-

478
General for the respondent has contended before this court that the maxim omnia praesumuntur applies
and it was wholly unnecessary to prove compliance in detail with the Statute except in so far as ss 206-210
call specifically for proof as a condition precedent to the deposition being admitted.
On the first ground of appeal it was submitted by learned counsel for the appellant that the evidence of
Assistant Superintendent of Police, Samuel Brookes, a witness who was not on the depositions, was
admitted wrongfully by the learned trial judge, no notice of additional evidence having been given to the
defence. The witness was called to give formal but material evidence. With regard to this ground of appeal
it suffices to say that there is no rule of law here which requires the prosecution to give notice of additional
evidence though the common practice has been to give such notice. If the practice is not adhered to, the
matter is one for strong comment on the part of the defence. The evidence sought to be adduced is not
thereby rendered inadmissible. It was open to counsel for the defence if he considered that the defence had
been taken by surprise to have sought, and no doubt the learned trial judge would have granted, an
adjournment in order to permit him to prepare himself to meet the new evidence. Counsel for the appellant
states that no such request was made to the trial court. The admission of the evidence in the circumstances
cannot now be made the subject of legitimate comment. The same considerations would apply to the
evidence of Dr Margetson, when he was recalled to give evidence which did not appear on the deposition. It
was further submitted that Dr Margetson should not have been tendered as a witness to give evidence of
what he said before the magistrate but that, in the absence of the deposition, the magistrate was the proper
channel through which the evidence ought to have been communicated to the court. We are of the opinion
that the submission is well founded.
On the ground of appeal 1 (c) it was submitted that the deposition of George Blake was wrongly
admitted in evidence in that it was not in the form of a deposition within the meaning of s 60 of the
Magistrates Code of Procedure Act, Cap 61 [LIs], which required the evidence of a witness at a preliminary
inquiry, after the taking thereof, to be read over to, and be signed by, the witness. It was submitted that this
was an essential ingredient of a valid deposition, and that there was no evidence, either on the face of the
deposition or aliunde, to show that this had been done, and before the deposition could be tendered in
evidence under the provisions of s 206 of the Magistrates Code of Procedure Act, Cap 61 [LIs], it was
necessary for the prosecution to satisfy the court as to the fulfilment of this requirement. It was submitted by
the learned Attorney-General that s 206 of Cap 61 did not require proof that the deposition had been read
over and signed by the witness, and therefore the deposition was properly admissible under s 206, provided
that the other requirements of the section were met. We are of the view that evidence of a witness when
taken by the magistrate at a preliminary inquiry does not become a deposition until it has been read over to
and signed by the witness. This is in accordance with s 60 of Cap 61. Section 207 of Cap 61 requires a
deposition taken under the provisions of that section to be taken in the manner prescribed by this Act.
Such a deposition must therefore conform to the provisions of s 60. Our attention has not been directed to,

nor have we been able to find, any case in the books which specifically states that proof must be given of
the reading over and signature of the deposition before it can be read in evidence. But an expression of
opinion on this matter is to be found in Phipson On Evidence, 9th Edn, at p 530. There the learned author
states:
The deposition when completed is directed to be read over to and signed by the witness. It has
been thought that the omission of this formality might exclude the evidence, but in R v Holloway
((1901), 65 JP 712, 14 Digest (Repl) 222, 1850) the mere assent of a dying

479
deponent was held sufficient although the deposition was not taken under the Criminal Law
Amendment Act, 1867, section 6.
R v Holloway ((1901), 65 JP 712, 14 Digest (Repl) 222, 1850) decided that a deposition taken in
accordance with s 17 of the Indictable Offences Act, 1848 [UK], was admissible in evidence although it was
not signed by the deponent by reason of serious injuries to her hand precluding her from writing or making a
mark. It is worthy of note that in that case one of the reasons given for admitting the deposition in evidence
was the fact that it had been read over to, and assented to by, the witness as being correct. If it is
contended, as indeed it was by the learned Attorney-General, that a court will infer from the magistrates
signature that the statutory provisions have all been complied with, the following paragraph from Taylor On
Evidence, 11th Edn, Vol 1, suggests that such may not be the case:
482. What amount of proof will authorise the reading of the deposition? Will it suffice simply to
show that the witness is dead, or too ill to travel; that he was examined in the presence of the accused,
who had a full opportunity of cross-examining him; and that the document purports to be signed, either
by the committing justice, or, at least, by the justice by or before whom the same purports to have
taken place? or must the prosecutor further prove all or any of the following facts, viz, that the
deposition was taken before the accused was committed or bailed; that it was taken on oath or
affirmation; that it was read over to the witness, and that it was signed by him? The clause
enumerates all these circumstances as apparently necessary ingredients in a valid deposition; and
then, in the paragraph relative to the proof, speaks, first, of the person, whose deposition shall have
been taken as aforesaid, being dead, &c, and next, of such deposition purporting to be signed by the
justice. If it be contended that the court will infer from the magistrates signature that the statutory
provisions have all been complied with, the form of the caption of the deposition, as given in the
schedule to the Act, furnishes a probable answer to such an argument: for by that form the justice
merely states that the witness was examined on oath, and in the presence of the accused, and it is
wholly silent as to whether or not the examination was read over to the witness, or was signed by him.
Now, as the magistrates signature is clearly insufficient to prove that the accused was present during
the examination of the witness (for the statute in terms requires this to be proved), though that fact is
positively stated in the caption so attested, on what ground can it be urged that the same signature is
sufficient to prove the taking of the oath, which is a fact stated in the caption in a precisely similar
manner? At all events, how can the facts that the deposition was read over to the witness, and that it
was afterwards signed by him, be proved by the magistrates signature, when neither of these
circumstances is so much as alluded to in any part of the document? In short, if the signature of the
magistrate does not authenticate the facts which are recited in the caption, how can it authenticate
facts which are not there recited at all?
We are of the view, that before a deposition can be admitted in evidence under the provisions of s 206,
evidence must be given that the evidence of the witness was read over to, and signed by, or at least,
assented to, by the witness. It is conceded that there was no evidence in the court below that this had been
done, and on the deposition itself, there is no record to that effect, and accordingly in our view it was not
properly admissible.
Certain submissions were made to us on the caption or heading of the deposition. Section 207
requires the magistrate after taking the deposition and signing it, to add by way of heading, a statement of
the reason for having taken it, and of the day and place on and of which it was taken, and of the

480
names of the persons, if any, present at the taking thereof. The heading on the deposition tendered in
evidence is on a separate sheet of paper entirely, and it is impossible to say whether it precedes or follows
the main body of the deposition. It is clear that the section envisages that the heading should form part of
the deposition, and our view is that to comply with the section a space should be left at the top of the sheet
of paper on which it is proposed to take the evidence of the witness, which space should be appropriately
filled in by the magistrate at the conclusion of the taking of the deposition. Though the point was not taken
before us, an examination of the supposed heading of the deposition reveals that the information required to

be inserted therein was not correctly set out. It should be clearly stated that the reason for the taking of the
deposition is that it has been proved before the magistrate on oath that the deponent is dangerously ill and
unable to travel and that he is willing and able to give material information as to the offence with which the
accused person has been charged. Though medical evidence was adduced in the court below to prove the
medical condition of the deponent, it was admitted that the magistrate had not in fact taken evidence on oath
from anyone to the effect that George Blake was willing and able to give material information as to an
offence. It has been laid down that the heading or caption forms an integral part of the deposition ( R v
Prestridge ((1881), 72 LT Jo 93, 14 Digest (Repl) 222, 1849)) and in accordance with the principle of R v
Curtis ((1904), 21 TLR 87, 14 Digest (Repl) 222, 1852) the deposition ought not to have been admitted in
that defective form.
Section 208 of Cap 61 requires that reasonable notice that it is intended to take the deposition be given
to the accused person, and in our view before the prosecution can properly tender the deposition in
evidence under the provisions of s 206 of Cap 61 it must be proved that reasonable notice was in fact given.
The evidence before the learned trial judge was to the effect that a notice of some eight minutes duration
had been given, and on this material the learned judge held that it was sufficient notice within the meaning of
s 208. It has been submitted by learned counsel for the appellant that the notice in the circumstances was
not reasonable. The learned judge gave the reason for his ruling, and if we may respectfully say so, we do
not agree with the principle which he applied in determining the question. The object of serving notice on
the accused person is stated by Day J, in his judgment in R v Shurmer ((1886), 16 Cox, CC 94, 17 QBD
323, 55 LJMC 155, 55 LT 126, 50 JP 743, 34 WR 656, 2 TLR 737, 14 Digest (Repl) 222, 1846):
The object (that is, of reasonable notice) of course is to enable the person about to be charged
with an offence to attend at the place and time when and where the deposition is to be taken and to
enable him to secure such assistance as he requires in order to protect his interests.
In R v Harris ((1918), 26 Cox, CC 143, 82 JP 196, 14 Digest (Repl) 222, 1847), where an accused
person had only been given one hours notice of the intention to take the evidence, Avory J, was prepared to
hold that such a notice would not have satisfied the requirements of the Act. In his judgment ((1918), 26
Cox, CC at p 145) he states:
. . . in determining whether there was a full opportunity of cross-examining I must have regard to
the time at which the person was first apprised of the intention to take the evidence. It was only an
hour before the time she was in fact brought to the infirmary, so in my opinion she had not a full
opportunity of cross-examining the witness. Therefore I must reject the deposition under the Indictable
Offence Act [UK] and hold that it is not admissible in evidence against the prisoner.
The views of so distinguished a judge in the criminal law on matters of criminal procedure ought always
to command special respect. In our view the notice given to the appellant fulfilled neither the requirements
of s 206 nor of s 208 of Cap 61 [LIs] and the deposition ought to have been rejected by the learned trial
judge. It might be true to say that in the particular circumstances a magistrate is enjoined to act
expeditiously in order to perpetuate the

481
testimony, but any such action must have regard to the safeguards laid down by the statute for the
liberty of the subject. Apart altogether from these considerations the notice itself is defective. It fails to
specify the time of the proposed examination, and also the offence in relation to which it is being taken and
the fact that it is an indictable offence. In the Commonwealth case of R v Leung Tai ((1920), 15 Hong Kong
LR 62, 14 Digest (Repl) 223, 1155) a notice defective in these respects was held not to be reasonable.
Before disposing of the question of the deposition it might not be amiss to refer to what appears to be
the modern tendency with regard to the reading of a deposition at a trial. In R v Linley ([1959] Crim LR 123)
the question of the reading of the deposition of the principal witness in a case of robbery with violence where
the witness was so ill as to be unable to travel, was canvassed. It was conceded by both counsel in that
case that under the section in English Law, corresponding to s 206 of Cap 61 [LIs], the court had a discretion
as to whether it would permit any particular deposition to be read in evidence, even though it fulfilled the
requirements of the section. It was submitted by counsel for the defence in that case that the evidence was
substantially the case for the prosecution and would inevitably have to be challenged. Counsel for the
Crown argued inter alia that the discretion to exclude should only be exercised where injustice to the
accused was manifest, perhaps, for instance, in capital cases. Ashworth J, held that it would not be right to
permit the deposition of the witness to be read at the trial. He is further stated to have observed, in the
course of argument, that in a case of rape, he would have thought the evidence of the prosecutrix ought not
to be read.
Should a judge in any particular case exercise his discretion and admit the deposition then it may well
be that an obligation is case upon the trial judge in his summing up to draw to the attention of the jury that

the evidence has come to them in a form where they have not had an opportunity of seeing the witness give
his evidence, of hearing what he has to say, of observing his demeanour in the witness box, and of
themselves exercising the right, if they choose, to ask the witness questions, and further of hearing the
witness cross-examined by the accused, if he so desires. In other words the jury should be directed to view
such evidence with caution. Such a direction we suggest might obviate any possibility of an injustice being
done to the accused by the reading of the deposition. The deposition of George Blake for the reasons we
have stated above was inadmissible, and without the deposition there was no evidence connecting the
appellant with the crime. The conviction must accordingly be quashed.
In view of the conclusion to which we have arrived on the admissibility of the deposition, it is not
necessary for us to express any views on the other grounds which were raised on this appeal.
Appeal allowed.

482
(1959) 1 WIR 483

Bailey v Smith-Bingham
FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, RENNIE AND ARCHER JJ
17, 18, 19, 21 NOVEMBER 1958 27 APRIL 1959

Contract Agency Effect of an agent putting property which he had agreed to purchase for his principal in
the names of his wife and of himself.
Equity Right of the principal What makes equities equal Notice Actual Can the exercise of
reasonable care and diligence offset such notice?
RB, who was desirous of purchasing land of which he was the tenant, but being without the means to enable
him to purchase it, asked DS-B to lend him the money he needed. DS-B would not agree to make a loan to
RB but suggested to him that he, DS-B, would buy the land and allow RB to remain on it at a pepper-corn
rental. An agreement to that effect was entered into between them and RB was instructed to conclude the
purchase with his landlord and to do so as DS-Bs agent.
RB entered into an agreement with his landlord to purchase the land and later had it conveyed to his wife
and himself.
Held: (i) that on the completion of the agreement to purchase the land RB became a trustee for DS-B of the
interest he acquired in it.
(ii) that RB acted fraudulently and did so in the course of his employment by his wife to further their common
interest. She is accordingly liable for the fraud of her husband and no transaction founded on that fraud
which inures for the benefit of either the husband or herself can stand.
Appeal dismissed.
Cases referred to
Fry v Lane, Re Fry, Whittet v Bush (1888), 40 Ch D 312, 58 LJ Ch 113, 60 LT 12, 37 WR 135, 5 TLR 45, 12
Digest (Repl) 124, 739
Lees v Nuttall (1835), 2 My & K 819, 39 ER 1157, 1 Digest 458, 1464
Taylor v Salmon (1838), 4 My & Cr 134, 41 ER 53, 1 Digest 460, 1470
Ex p James, Re Mutual Aid Permanent Benefit Building Society (1883), 49 LT 530, 48 JP 54, 1 Digest 396,
980
Chattock v Muller (1878), 8 Ch D 177, 1 Digest 459, 1467
Bowen v Evans (1848), 2 HL Cas 257, 9 ER 1090, HL, 40 Digest (Repl) 398, 3184
Allcard v Skinner (1887), 36 Ch D 145, 56 LJ Ch 1052, 57 LT 61, 36 WR 251, 3 TLR 751, CA, 12 Digest
(Repl) 111, 659
Evans v Llewellin (1787), 1 Cox, Eq Cas 333, 2 Bro CC 150, 29 ER 1191, 25 Digest 267, 915

Jared v Clements [1903] 1 Ch 428, 72 LJ Ch 291, 88 LT 97, 51 WR 401, 19 TLR 219, 47 Sol Jo 435, 40
Digest (Repl) 181, 1437
Farrand v Yorkshire Banking Co (1888), 40 Ch D 182, 58 LJ Ch 239, 60 LT 669, 37 WR 318, 20 Digest 308,
609
Cave v Mackenzie (1877), 46, LJ Ch 564, 37 LT 218, 1 Digest 284, 151
Cave v Cave (1880), 15 Ch D 639, 28 WR 798, sub nom Chaplin v Cave, Cave v Cave, 49 LJ Ch 505, 42 LT
730, 20 Digest 306, 594
Appeal
Appeal by the defendant RB from the judgment of the Supreme Court of Jamaica (Trial DivisionCoolsLartiguee J) dated 5 June 1958, granting the plaintiffs claim. The facts appear in the judgment of Hallinan C
J.
Leacroft Robinson (instructed by Fraser and Calame) for the appellants
Coore (instructed by Judah and Randall) for the respondent
HALLINAN CJ. The subject-matter of this suit is a parcel of land, about 8 acres, situated at Blue Hole in the
parish of Portland, Jamaica. The first defendant worked as an artisan on the San San Estate which is in the
same

483
parish and on which estate the plaintiff has an interest. The first defendant in addition to his work cultivated
the land in dispute, which he rented from a man called Lawrence for 10 a quarter. In August 1955, the first
defendant informed the plaintiff that Lawrence was prepared to sell the land in dispute for 340 and the first
defendant asked the plaintiff to lend him the money. The plaintiff said that he was unable to do this but that
he would like to buy the land himself and allow the first defendant to remain on it at a pepper-corn rental of
one shilling a year, provided that the plaintiff might determine the tenancy at any time upon paying
compensation for any cultivation that happened to be on the land at the time. This offer was accepted by
the defendant and an agreement to that effect was signed by both parties on 16 August 1955.
There is a conflict of evidence as to the conduct of the first defendant thereafter. The first defendant
alleges that as the plaintiff insisted on seeing Lawrences documents of title and as the first defendant was
unable to procure them, he gave notice to the plaintiff on 29 August terminating the contract of agency of 16
August. The plaintiff on the other hand states that the first defendant never terminated the agreement but,
on the contrary, as late as 27 September he had delivered to the plaintiff a note indicating that he was still
negotiating with Lawrence to purchase the land. However, before this date, that is, on 10 September the
first defendant had, in fact, entered into an agreement with Lawrence that he and his wife, the second
defendant, would purchase the property for their own benefit; and on 29 September Lawrence executed a
conveyance of the land in dispute to the two defendants. The defendants have stated that so much of the
purchase price as was paid in cash was found by the second defendant; the balance was secured by a
mortgage which was given by both the defendants to the vendor.
The plaintiff left Jamaica in October or November and did not return until March 1956. About May, he
heard that the first defendant had bought the land in dispute and correspondence between the solicitors for
the parties ensued, as a result of which the plaintiff commenced these proceedings on 25 June 1956.
The statement of claim alleges that the first defendant in breach of the agreement of 16 August
purchased the land in dispute on or about 29 September and that on 29 September the land was conveyed
jointly to the defendants. The defence of the first defendant is that the was exonerated and discharged
from performing the agreement of 16 August because there was a total refusal by the plaintiff to perform the
said agreement before 29 September 1955, and that this refusal was acted upon by the first defendant and
adopted by him as a rescission of the agreement above referred to. The first defendant also denies that it
was a term of the agreement that the first defendant would transfer the land in dispute to the plaintiff. In the
defence of the second defendant it is alleged that at the time when the land was conveyed to her she was
not aware of any interest in the land held by the plaintiff. In the defendants pleadings it is nowhere denied
that it was the first defendant and the first defendant alone who purchased the land from Lawrence; nor does
she allege that the first defendant acted as agent for her.
The learned trial judge carefully considered the evidence on the issue as to whether the first defendant
had terminated the agreement of 16 August and came to the conclusion that the first defendant had not
done so and that the agreement was still in full force and effect. Counsel for the defendants has submitted
that this finding is against the weight of the evidence but I am unable to accept this submission. It is, I think,
strong evidence of the bad faith of the first defendant that he never delivered to his solicitor, Mr Dale, the
note which the plaintiff had given him on 16 August. In that note the plaintiff informed Mr Dale that the

money for the land which the first defendant was to purchase was being put up by the plaintiff. The note
was never delivered to Mr Dale, who at the time of the conveyance was quite unaware of the plaintiffs

484
interest in the matter. The first defendant is not indeed able to give a credible account of the steps
taken by himself and his wife in acquiring the property in dispute. He alleges that on Monday, 29 August he
determined the agreement of the 16th of that month and on the following Sunday, that is 4 September he
told his wife what had happened, whereupon she decided to find the money and buy the property. Later in
his evidence he says, my wife and I signed a contract with Lawrence some time after the money was put
up. Now the contract was signed on 10 September so that his wife must have found the money after 4
September and before 10 September; but it is clear from the documentary evidence that she could not have
received a part of the purchase price which she said she obtained from her relatives in the United States
until 15 September. The statement of defence for the first defendant is that there was a total refusal by the
plaintiff to perform the agreement of 16 August. This is substantially a different allegation from that put
forward in his evidence, for at the trial he stated that he determined the agreement because he was unable
to comply with the plaintiffs quite reasonable request to see the vendors documents of title. I consider that
the finding of the trial judge that the first defendant had not terminated the agreement of 16 August should
not be disturbed.
It has been strongly urged for the defendants both at the trial and in this appeal that even if the
agreement had not been terminated that it should not be enforced because it was one of those
unconscionable bargains which a court in the exercise of its equitable jurisdiction will set aside. The
principle is stated in Snell On Equity, 24th Edn, p 510, as follows:
Contracts and bargains of an improvident character made by poor and ignorant persons acting
without independent advice will be set aside in Equity unless the other party satisfies the onus on him
to show that the transaction is fair and reasonable. The rule is not confined to sales of reversionary
interests but applies also to sales of property in possession.
The authority cited for this proposition is Fry v Lane Re Fry, Whittet v Bush ((1888), 40 Ch D 312, 58 LJ Ch
113, 60 LT 12, 37 WR 135, 5 TLR 45, 12 Digest (Repl) 124, 739) (40 Ch D at p 312), where the headnote
begins as follows:
Where a purchase is made from a poor and ignorant man at a considerable undervalue, the
vendor having no independent advice, a Court of Equity will set aside the transaction. This will be
done even in the case of property in possession, and a fortiori if the interest be reversionary.
The principle in Fry v Lane Re Fry, Whittet v Bush ((1888), 40 Ch D 312, 58 LJ Ch 113, 60 LT 12, 37 WR
135, 5 TLR 45, 12 Digest (Repl) 124, 739) seems to derive from the relief granted in equity to expectant
heirs who because of their inexperience and extravagance were caught in unconscionable bargains. Anson
On Contract, 20th Edn, p 202, states the principle very widely:
The case of the expectant heir, however, is only one illustration of a wider principle of Equity which
applies generally to what have been called catching bargains, that is to say, whenever the parties
meet in such circumstances as, in a particular transaction, to give the stronger party dominion over the
weaker.
In all the case to which we have been referred where this equitable principle regarding unconscionable
bargains applies, the party seeking to establish that the bargain was unconscionable has parted with
property either in possession or in reversionary or has been the victim of usury amounting to extortion. In
the present case the first defendant under the agreement of 16 August parted with nothing more than the
chance of accepting an offer by Lawrence to sell the land in dispute for 340. I have considerable doubt
whether the principle of equity would apply to protect an inchoate interest of this kind.
When the facts of the transactions were opened to us by counsel for the

485
defence I did at first think that the plaintiff had taken undue advantage of the first defendant to catch at a
bargain. The land today is worth between 3,000 and 4,000. The first defendant is a comparatively poor
man and probably not well educated. I am not aware of the plaintiffs financial standing but it would appear
that he is a well-to-do educated man. The first defendant did not have any legal advice before entering into
the contract which was drawn up by Mr Marchalleck, a resident magistrate, who was a friend of the plaintiff.
However, on looking more closely into the facts, I am satisfied that there was nothing unconscionable in the
plaintiffs conduct. Mr Shelley, the overseer of San San Estate, in his evidence stated that at the request of
the first defendant he valued the land in dispute two or three months before the agreement of 16 August.
His valuation was 350not more than 400. It must be remembered that the land was sold for agricultural

purposes. He stated that the land greatly increased in value when Mr Weston in February or March of 1956
bought land nearby for an hotel. This at once gave the land an immediate value for purposes of
development. The plaintiff admitted in evidence that the land in 1955 was worth 900 plus for
development purposes but there is no evidence that there were any buyers for development at that date or
that the first defendant himself wished to acquire the land for any other but agricultural purposes. His main
concern appears to have been to ensure that he could continue his cultivation. From these facts I conclude
that the agreement to buy this land for 340 was not necessarily an under-value and that the first defendant
had the independent advice of Mr Shelley. One must also remember that once the first defendant had
divulged to the plaintiff that the land could be bought for 340, there is no principle in equity which could
preclude the plaintiff from going to Lawrence and making with him the best bargain he could. Lastly, the first
defendant himself said in evidence: I did not see anything unfair about that (the agreement) as he was to
pay me for my cultivation and I was to pay no rent. I do not think that the first defendant was so ignorant or
so much under the dominion of the plaintiff that if he thought the bargain was unfair, he would not say so. As
I understand it, his main defence has been that he had terminated the agreement and so was not bound by
it. The burden of proving that the bargain was unconscionable is on the first defendant, and in my view the
trial judge rightly held that this was not the kind of bargain to which the principle of equity invoked by counsel
for the defendants should be applied.
The plaintiffs claim that the defendants should convey the property in dispute to him is based on a
principle of the law of agency which is set out in Art 50 of Bowstead On Agency, 11th Edn, at p 88:
Where an agent who is employed to purchase property on behalf of his principal, purchases it in
his own name or on his own behalf, and it is conveyed or transferred to him, he becomes a trustee
thereof for the principal.
The first case cited in support of this principle is Lees v Nuttall ((1835), 2 My & K 819, 39 ER 1157, 1 Digest
458, 1464). Counsel for the defendants submitted that this principle only applied when the agent at the time
of purchase intended to purchase the property for his principal, whereas in the present case at the time
when the first defendant made the agreement with the vendor on 10 September he intended to purchase on
behalf of his wife or himself and his wife. There is, I think, no substance in that point. In Taylor v Salmon
((1838), 4 My & Cr 134, 41 ER 53, 1 Digest 460, 1470) the Lord Chancellor (Lord Cottenham) in the course
of his judgment said:
If Salmon, at the time when he entered into the agreement with Lord Dunalley, was acting as the
agent to the plaintiff Taylor, in negotiating for the lease, it is not material whether at that moment he
intended that the agreement should be for the benefit of the plaintiff or for his own; because in

486
either case the plaintiff would be entitled as against him, to the benefit of the contract.
During the course of the argument I was in some doubt as to the precise reason why the agent in Lees v
Nuttall ((1835), 2 My & K 819, 39 ER 1157, 1 Digest 458, 1464) who purchased the property in his own
name is considered a trustee for his principal. No reasons are given for the judgment in that case. It is well
established in the law of trusts that a trustee or any person in a fiduciary relationship to another is not
permitted to purchase the property entrusted to him by that other without the sanction of the court or under a
power in the trust instrument. The basis of this rule is not fraud (for the transaction will be set aside however
honest and fair) but probably because the situation of the trustee gives him an opportunity of knowing the
value of the property and as he acquires that knowledge at the expense of the cestui que trust he is bound
to apply it for the cestui que trust benefit. Eldon LC, put it thus in Ex p James Re Mutual Aid Permanent
Benefit Building Society ((1883), 49 LT 530, 48 JP 54, 1 Digest 396, 980) (32 ER at p 389):
The principle is, that as the trustee is bound by his duty to acquire all the knowledge possible, to
enable him to sell to the utmost advantage for the cestui que trust, the question, what knowledge he
has obtained, and whether he has fairly given the benefit of that knowledge to the cestui que trust,
which he always acquires at the expense of the cestui que trust, no Court can discuss with competent
sufficiency or safety to the parties.
I have come to the conclusion that the rule in Lees v Nuttall ((1835), 2 My & K 819, 39 ER 1157, 1
Digest 458, 1464) does not arise because of the strict liability attaching to a trustee as laid down by Lord
Eldon; the rule I think is based on the element of fraud which is present when an agent who has undertaken
to purchase for the principal purchases for his own benefit. In Chattock v Muller ((1878), 8 Ch D 177, 1
Digest 459, 1467), the defendant purchased an estate having agreed with the plaintiff that after he had
made the purchase he would cede part thereof to the plaintiff. Subsequently the defendant alleged that it
was agreed that he should cede part only if he bought part of the estate but having bought the whole, he

could let or keep the whole. The court rejected the defendants allegation and found that he had purchased
part of the estate as agent for the plaintiff. Malins V-C, in his judgment (8 Ch D at p 181) states that the
defendants action in keeping the whole estate was a flagrant breach of duty which in this court has always
been considered as fraud, and he cites Lees v Nuttall ((1835), 2 My & K 819, 39 ER 1157, 1 Digest 458,
1464).
Since, therefore, the agreement of 16 August had not been terminated and should not be set aside as
an unconscionable bargain and in view of the principle laid down in Lees v Nuttall ((1835), 2 My & K 819, 39
ER 1157, 1 Digest 458, 1464), if the first defendant had purchased the property in dispute for his own benefit
alone there can be no doubt that the plaintiff is entitled to succeed on his claim.
However, the full benefit of the purchase is claimed by his wife, the second defendant, who it is alleged
has put up the purchase money; and therefore, even though the first defendant took the conveyance jointly
with his wife, it is submitted there is a resulting trust in the wife to the whole property. It has been further
submitted for the second defendant that she acquired an equitable interest when the first defendant and the
vendor signed the agreement of 10 September and that she acquired the legal estate on 29 September.
Having thus acquired the equitable interest contemporaneously with that of the plaintiff and also got the legal
estate, her interest must rank prior to that of the plaintiff. Alternatively, even if she did not acquire an
equitable interest on 10 Septemberif it was held that the first defendant must be deemed to have signed
the agreement on behalf of the plaintiff alonethen the second defendant acquired the legal estate on 29
September and being a bona fide purchaser for value, her legal interest must take priority over the equitable
interest acquired by the plaintiff on 10 September.

487
Much time and argument was devoted to the technicalities of equitable priorities and the learning as to
imputed notice to a principal, but in my view, the issue is not one of priorities but of fraud; that is to say, first,
did the second defendant assist or connive at the fraud which her husband perpetrated on the plaintiff? and
secondly, did her husband, as her agent and in the course of his employment as such, fraudulently preclude
the plaintiff from acquiring the land in dispute? First then, did she assist or connive in his fraud?
Unfortunately, the learned trial judge made no finding on this particular issue but held that the second
defendant had imputed notice of the fraud through her agent, the first defendant. This affects the issue of
equitable priorities rather than of fraud. In Bowen v Evans ((1848), 2 HL Cas 257, 9 ER 1090, HL, 40 Digest
(Repl) 398, 3184) the Lord Chancellor states ((1848), 2 HL Cas at p 281):
If a case of fraud be established, Equity will set aside all transactions founded upon it, by whatever
machinery they may have been effected, and notwithstanding any contrivances by which it may have
been attempted to protect them.
In my view this transaction whereby a husband seeks to escape the consequences of his fraud by securing
a purchase and conveyance for the benefit of his wife is a transaction open to grave suspicion and has all
the appearance of a contrivance. The first defendant has stated that he told his wife on 4 September that he
had terminated his agreement and she gave similar evidence. But it must be remembered that the trial
judge found, in my view rightly, that the agreement had never been terminated. In these circumstances,
would the first defendant have told his wife a deliberate lie and pretended to her that he had terminated his
agreement with the plaintiff when in fact he had not done so? The first issue on fraud could, I think, only be
decided by sending this case back for retrial; but because of my conclusion on the issue of whether the
fraud of the first defendant can be imputed to the second defendant as his principal, I do not think it is
necessary to send this case back.
In my view all during the period that the first defendant was acting as agent for his wife he was, as the
evidence shows, deliberately misleading the plaintiff into thinking that the first defendant was negotiating to
acquire the land in dispute for the plaintiff and thus prevented the plaintiff from protecting his own interests
and trying to acquire the land for himself. This action of the first defendant was, I think, done in the course
of his employment by his wife, the second defendant, and to further their common interest. The matter is put
thus in Kerr On Fraud And Mistake, 7th Edn, p 492:
A principal is liable to third persons for frauds, deceits, concealments, torts and omissions of duty
of his agent, when acting in the course of his employment, although the principal did not authorise or
justify or participate in, or indeed know of such misconduct, or even if he forbade the acts or
disapproved of them.
Since, therefore, the second defendant is liable for the fraud of her husband, I do not consider that any
transaction founded on that fraud which inures for the benefit either of her husband or of herself can stand.
For these reasons I consider that the order of the court below in this matter is correct and that this appeal
should be dismissed with costs.

RENNIE J. The first ground of appeal argued in this case is one of fact, namely that the judge of the court
below was wrong in accepting the respondents version of the facts. There was no suggestion that the
learned judge misdirected himself on the facts nor that any advantage enjoyed by him by reason of having
seen and heard the witnesses could not be sufficient to explain or justify his conclusion. In the absence of
such a misdirection or failure to take advantage of the fact that he saw and heard the witnesses and where
there

488
is sufficient evidence as exists in this case to support the finding of fact an appellate court will not interfere
with the decision.
The second submission put forward on behalf of the appellants is that the respondent unduly influenced
the first appellant into entering into the agreement of 16 August 1955, or that he took an unfair advantage of
a poor and ignorant man or that the agreement is unfair. That argument in all its branches means no more
than that the transaction is tainted with equitable fraud. That fraud may be of such a nature that it will give
rise to a presumption of undue influence. In such a case the equitable title of the grantee is incomplete
unless he can rebut the presumption that he unduly influenced the grantor. For such a presumption to arise
there must be a fiduciary relationship between the grantor and the grantee or, as Lord Lindley puts it in
Allcard v Skinner ((1887), 36 Ch D 145, 56 LJ Ch 1052, 57 LT 61, 36 WR 251, 3 TLR 751, CA, 12 Digest
(Repl) 111, 659) ((1887), 36 ChD at p 181):
The second group consists of cases in which the position of the donor to the donee has been such
that it has been the duty of the donee to advise the donor or even to manage his property for him.
The evidence does not bring this case within the group where a presumption of undue influence could arise.
But there is another group of cases which must be considered. Cases in that group are Evans v Llewellin
((1787), 1 Cox, Eq Cas 333, 2 Bro CC 150, 29 ER 1191, 25 Digest 267, 915), a case of inadequate
consideration to persons in low circumstances, and Fry v Lane Re Fry, Whittet v Bush ((1888), 40 Ch D 312,
58 LJ Ch 113, 60 LT 12, 37 WR 135, 5 TLR 45, 12 Digest (Repl) 124, 739), where there were circumstances
of poverty and ignorance. Interesting as these cases are they are only helpful in deciding this matter if a
principle can be evolved from them. The law does not prohibit one from having transactions with poor and
ignorant persons but it will protect them if they can show that someone having some influence over them
used their ignorance and poverty in order to induce them into some transaction into which they would not on
their own unfettered judgment have entered. That is the principle as I understand it. Lord Lindley in Allcard
v Skinner ((1887), 36 Ch D 145, 56 LJ Ch 1052, 57 LT 61, 36 WR 251, 3 TLR 751, CA, 12 Digest (Repl) 111,
659) expresses it in this way (36 ChD at p 182):
What then is the principle? Is it that it is right and expedient to save persons from the
consequences of their folly? Or is it that it is right and expedient to save them from being victimised by
other people? In my opinion the doctrine of undue influence is founded on the second of these
principles. Courts of Equity have never set aside gifts on the ground of the folly, imprudence or want of
foresight on the part of the donors.
With the principle to guide me I now look at the evidence in the case to see if the respondent used the
ignorance and poverty of the first appellant to induce him to enter into a transaction into which he would not
on his own unfettered judgment have entered. There is nothing in the evidence that I can find that would
suggest that the respondent induced the first appellant to enter into a transaction or that the first appellants
judgment was fettered or that he was victimised. One is not victimised by another if for want of funds he is
unable to accept an offer to purchase land and after unsuccessfully making requests for loans agrees to
purchase the land as the agent of the other.
It was suggested that the first appellant suffered a loss in that his tenancy with Lawrence was secure for
a year under the Agricultural Small Holdings Law, Cap 8 [J], whereas under the agreement with the
respondent his tenancy could be determined at any time without notice. But that is not the whole picture of
the position. Under the tenancy with Lawrence his rental was 40 per annum and no provision was made to
compensate him for the loss of his crops at the end of the tenancy whereas under the agreement with the
respondent the rental was fixed at 1/- per annum and provision was made whereby he would be paid the
value of his cultivation on the land in the event of the

489
respondent determining the tenancy. I cannot see the first appellant as a victim in such circumstances.
It was also suggested that the transaction was unfair in that the land was worth much more than 340.
The evidence in this connection is that Lawrence offered it to the first appellant for 340. It was valued at
380 by a valuator whose services were engaged by the first appellant. Then there is the refusal of the
Loan Bank to make a loan on the security of the land. Against all that evidence is the statement of the

respondent that the land was worth 900 for development purposes. But that is not all the respondent said
in connection with its value; he also said he thought 340 a fair value for the land as agricultural land. On
that evidence it seems to me that the conclusion one must come to is that the value of the land was between
340 and 380 but that someone who has the foresight to see that it may become a development area may
be prepared to pay 900 for it. The fact that the first appellant did not have the foresight to see that the land
may become a development area does not make him a victim. I have already quoted Lord Lindley to that
effect.
This brings me to the point where I must consider what are the rights of the parties now that the first
appellant has purchased the land from Lawrence and it has been conveyed to his wife, the second
appellant, and himself and mortgaged by them to one Orgill.
It is clear law that where an agent who is employed to purchase property on behalf of his principal
purchases it in his own name or on his own behalf and it is conveyed or transferred to him he becomes a
trustee therefor for his principal: Lees v Nuttall ((1835), 2 My & K 819, 39 ER 1157, 1 Digest 458, 1464).
This being so the first appellant by virtue of the agreement of 16 August 1955, became the trustee of the
land for the respondent. But that is not the whole case. The second appellant has come into the picture as
a contender for the parcel of land. As to this the learned judge found that throughout the whole transaction
the first appellant acted as her agent. But it is clear that he did not start to so act for her until some time
after 16 August 1955. And there is also a finding of fact that up to 27 September 1955, the first appellant
was pretending to the respondent that negotiations for the purchase of the land were still in progress
whereas in fact the appellants had contracted and agreed to purchase it themselves on 10 September 1955.
In the light of these facts counsel for the appellants contended that on 10 September the second appellant
acquired an equitable interest in the land and even if he conceded that the respondent also acquired an
equitable interest on that day their equities would be equal and the second appellant having acquired the
legal estate the law would prevail. That argument presupposes that the equities will be equal simply
because equitable estates in the same land were acquired at one and the same time. This is not
necessarily so and in the instant case if the second appellant acquired an equitable interest on 10
September her equity could not equal that of the respondent. Any interest she acquired on that day must be
tainted with the fraud of her husband who was acting as her agent and within the scope of his employment
as agent. His fraud consisted in deceiving the respondent in order that his wife might acquire the land. The
proposition that an equity tainted with fraud is not the equal of one not so tainted is supported by the
following passage to be found in Hanburys Modern Equity, 6th Edn, at pp 429 and 430:
The position might be truly stated by saying that as between several equitable mortgagees of the
same piece of land the first in time prevailed, unless the later mortgagee took advantage of the
doctrine of tacking. But before discussing this doctrine let us return to our hypothesis and see what
circumstances will render the equities unequal, for the doctrine can operate only where they are equal.
Furthermore an inequality in the equities would displace the priority gained by time. It is important to
see how the scales

490
might be weighted in favour of one equity against another. Furthermore as we have seen, fraud or
gross negligence might deprive of priority even that idol of equity the legal mortgage.
It also finds support in the passage of the judgment of Romer LJ, in Jared v Clements ([1903] 1 Ch 428, 72
LJ Ch 291, 88 LT 97, 51 WR 401, 19 TLR 219, 47 Sol Jo 435, 40 Digest (Repl) 181, 1437) ([1903] 1 Ch D at
p 432), where he said:
In order to get a good title it is for him to see that the outstanding interest is got in or destroyed,
unless indeed the owner of the interest has been guilty of some conduct which renders it inequitable or
improper on his part to set up his outstanding interest against the purchaser.
And there is also the following passage in the judgment of North J, in Farrand v Yorkshire Banking Co
((1888), 40 Ch D 182, 58 LJ Ch 239, 60 LT 669, 37 WR 318, 20 Digest 308, 609) ((1888), 40 Ch D at p 188):
The question is under these circumstances which of the two, the plaintiffs or the bank, ought to be
preferred? It is said that they have what are called equal equities. Of course one equity is always
prior to the other in date and the expression equal equities does not refer to equality in date. When
equities are equal in other respects the earlier in date is preferred but when equities are not equal then
the priority of date is easily got over, at any rate as between equitable incumbrances.
Finally there is the question of notice to the second appellant. The evidence as to this is that she knew
of the agreement of 16 August 1955, but that her husband told her he had told the plaintiff that since he had
not got any answer from Lawrence about the papers the agreement was off. Her position according to her

own evidence is that she had actual notice of the existence of the agreement of 16 August an agreement
that would give rise to an equitable interest in the respondent so soon as the first appellant agreed to
purchase the land. She had that notice before she took any step in the transaction but she said her
husband subsequently told her the agreement was off. Having had actual notice of the agreement, can she
shelter behind her husbands statement that the agreement is off? I think not. Nor will it suffice her to say
that she took reasonable care to find out if the agreement was still subsisting for having had actual notice of
it she thereafter proceeded at her own risks. That is my understanding of the decision in Jared v Clements
([1903] 1 Ch 428, 72 LJ Ch 291, 88 LT 97, 51 WR 401, 19 TLR 219, 47 Sol Jo 435, 40 Digest (Repl) 18,
1437) and of the passage from the judgment of Collins MR, which reads as as follows ([1903] 1 Ch at p
430):
It has been argued on behalf of the appellant, the purchaser, that, having regard to the form of the
receipt, his solicitor, although he had had notice of the equitable charge, must be treated as having
had notice, in effect, that it had been paid off, and was therefore justified in thinking it was a dead
charge, and that unless he was unreasonably negligent in the way he conducted the business the legal
title of the purchaser must prevail. That argument seems to me to involve a misconception of the true
rights of the parties. This is not a case of constructive notice raising the question whether all
reasonable diligence was exercised to find out what might have been, but was not in fact, discovered.
It is true that the learned judge has held that all due diligence was used by the purchasers solicitor,
and that there was no fault on his part; but, on the other hand, there is one broad fact underlying this
casethat there was, in the course of this transaction, actual notice of an existing equitable charge
upon the property. After that, it seems to me that if the purchaser chooses to complete without
ascertaining for himself whether the charge has been paid off, he does so at his own risk.
For these reasons I agree that the appeal should be dismissed with costs.

491
ARCHER J. I have reached the same conclusions as the other members of the court and for substantially
the same reasons and I therefore refrain from unnecessary repetition.
Although at first sight it appeared to me that the letter (Exhibit 5) written by the first defendant to the
plaintiff was more consistent with the first defendants version of the facts than with the plaintiffs version, the
evidence that he had not delivered the plaintiffs letter to the solicitor for the vendor of the land, which was
open to the construction put upon it by the trial judge, namely, that he deliberately withheld it, coupled with
the evidence of the plaintiff as to the date on which the first defendant handed Exhibit 5 to him, justifies the
finding that the letter was intended by the first defendant to mislead the plaintiff into thinking that he was still
negotiating for the land on the plaintiffs behalf.
There was no special relationship between the plaintiff and the first defendant from which undue
influence could be presumed and the first defendant has failed to show that the plaintiff took advantage of
the situation in order to induce him to enter into an agreement into which he would not otherwise have
entered. The development by courts of equity of an attitude towards oppressive transactions is shown by
several of the authorities to which reference was made during the course of the argument. There are
expressions in some of these authorities and in text-books which appear to lay down a rule of wide
application but no case has been cited in which an agency transaction of the kind entered into by the first
defendant has been the subject of inquiry. Whether or not such a transaction is covered by the principle is,
however, in my view, of no importance in this case, for the bargain which the plaintiff made with the first
defendant is not such as to call for the intervention of a court of equity. The first defendant had had his own
valuation of the property made, he took time to consider the plaintiffs proposition and the agreement was
explained to him before he signed it. I can find nothing so harsh or unconscionable in the agreement as to
warrant its being set aside as oppressive.
The agreement was, therefore, still subsisting on 10 September 1955, when the first defendant signed
the agreement for sale of the land. But it has been argued that his position differs from the position of the
agent in Cave v MacKenzie ((1877), 46, LJ Ch 564, 37 LT 218, 1 Digest 284, 151) and similar cases
because in those cases the agent continued to be agent up to the time of purchase and only subsequently
attempted to throw off his agency whereas the first defendant never purchased as the plaintiffs agent at all.
While the two positions differ there is no difference between the standards of conduct in each case at
whatever stage the agent claims the benefit of the transaction and such conduct has always been
considered as fraudulent by a court of equity, as Malins V-C, pointed out in Chattock v Muller ((1878), 8 Ch
D 177, 1 Digest 459, 1467), and the agent is treated as a trustee for his principal of the property acquired
whatever his intention at the time of purchase.
As between the plaintiff and the first defendant, therefore, the plaintiff acquired an equitable interest in
the land. The second defendant contended that she was a bona fide purchaser for value, that she had no
actual notice of the circumstances which gave rise to the plaintiffs interest and that such notice could not be

imputed to her inasmuch as the first defendants concealment from her of his breach of agreement with the
plaintiff was a fraud committed by him against her. There was no finding by the trial judge that she did not
have actual notice of the breach. In Cave v Cave ((1880), 15 Ch D 639, 28 WR 798, sub nom Chaplin v
Cave, Cave v Cave, 49 LJ Ch 505, 42 LT 730, 20 Digest 306, 594), Fry J, said ((1880), 15 Ch D at p 643):
... there is undoubtedly an exception to the construction or imputation of notice from the agent to
the principal, that exception arising in the case of such conduct by the agent as raises a conclusive
presumption that he would not communicate the fact in controversy. This exception has been put in

492
two ways.... In the one view notice is not imputed, because the circumstances are such as not to
raise the conclusion of law, which does ordinarily arise from the mere existence of notice to the agent,
in the other view . . . the act done by the agent is such as cannot be said to be done by him in his
character of agent, but is done by him in the character of a party to an independent fraud on his
principal, and that is not to be imputed to the principal as an act done by his agent.
The first defendants fraud was calculated to benefit the second defendant and the circumstances are not
such as to raise an inevitable conclusion that knowledge of the breach of agreement had not been
communicated to the second defendant. Indeed, it would seem to me to be extremely unlikely that she was
not told by her husband what the true position was. The fraud committed by the first defendant was,
therefore, an act done in his character of agent for the second defendant and the transaction into which he
entered on her behalf a fraudulent transaction which must be set aside.
I agree that the appeal fails.
Appeal dismissed.

(1959) 1 WIR 493

Yassin v Egerton
FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
ARCHER AG CJ, WYLIE AND LEWIS JJ
24,27 JULY 1959

Contract Vendor and purchaser of land Application for rectification and specific performance What
effect should be given to the description of the land in the written agreement.
VY negotiated with GE for the purchase of two buildings which are situate on the eastern portion of GEs
land. They agreed on a price of $9,000 and an agreement was entered into between them in which the
portion of land agreed to be purchased by VY was described as the eastern half of lot 41. This description is
in accordance with a certificate given by the Town Clerk certifying that the provisions of the Ordinance with
respect to subdivisions of lots would not be contravened by the passing of a transport for the eastern half of
GEs land. Subsequently, VY found out that the two buildings he agreed to purchase encroached on the
western half of lot 41.
In a suit against GE he asked the court to rectify the contract and to grant him specific performance of the
contract when so rectified.
Held: (i) there was a common mistake leading to the misdescription of the property in the agreement and
that the claim to have the contract rectified has been clearly established.
(ii) that in the circumstances of the case damages would not be an adequate emedy and consequently
specific performance of the contract as rectified should be ordered.
(iii) that if GE is unable to pass a transport for the portion of the western half of the lot on which the two
buildings stand by reason of the fact that the Town Clerk is not prepared to give her the necessary certificate
to enable her to do so, then she shall give title by transport to the eastern half of lot 41 and

493

shall demise to VY the land in the western half on which the buildings sold to VY actually stand. The demise
shall be for 999 years.
Appeal allowed.
Cases referred to
Solle v Butcher [1949] 2 All ER 1107, [1950] 1 KB 671, 66 (pt 1) TLR 448, CA, 31 Digest (Repl) 674, 7699
James Dow v Benjamin Phillips (Demerara Civil Case No 1428 of 1955)
USA v Motor Trucks, Ltd [1924] AC 196, 93 LJPC 46, 130 LT 129, 39 TLR 723, PC, 12 Digest (Repl) 151,
960
Bettesworth v St Pauls (Dean & Chapter) (1728), 1 Bro Parl Cas 240, 1 ER 541, HL, 12 Digest (Repl) 333,
2578
Thomas v Dering (1837), 1 Keen, 729, 6 LJ Ch 267, 1 Jur 211, 48 ER 488, 12 Digest (Repl) 93, 527
Mortlock v Buller (1804), 10 Ves 292, 32 ER 857, LC, 12 Digest (Repl) 176, 1165
Barnes v Wood (1869), LR 8 Eq 424, 38 LJ Ch 683, 21 LT 227, 17 WR 1080, 42 Digest 520, 844
Basma v Weekes [1950] AC 441, 66 (pt 1) TLR 1047, sub nom Abdul Karim Basma v Weekes, [1950] 2 All
ER 146, PC, 2nd Digest Supp
Tailby v Official Receiver (1888), 13 App Cas 523, 58 LJQB 75, 60 LT 162, 37 WR 513, 4 TLR 726, HL,
revsg. SC sub nom Official Receiver v Tailby (1886), 18 QBD 25, CA, 20 Digest 334, 770
Appeal
Appeal by VY from the judgment of the Supreme Court of British Guiana (Trial DivisionPhillips J) dated 10
March 1959, denying the relief of rectification. The facts appear in the judgment of Wylie J.
Manraj (instructed by O M Valz) for the appellant
Hardyal (instructed by C M L John) for the respondent
ARCHER Ag CJ. I have had the advantage of reading the judgment prepared by Mr Justice Wylie and I am
in full agreement with it.
WYLIE J. The respondent was the owner of a lot of land known as lot 41 (or 34) situated at the corner of
High and Harel Streets in the Werk-en-Rust Ward in the city of Georgetown, and of the buildings and
erections standing thereon. On 27 May 1955, after negotiations which are referred to in more detail later in
this judgment, she entered into a written agreement to sell to the appellant the eastern half of the property
with the buildings and erections thereon, intending to retain the balance for herself. In pursuance of the
terms of the agreement, the appellant entered on the land and did repairs to the building. The appellant
subsequently discovered that one of the buildings he had purchased encroached on the western half of the
property and called upon the respondent to convey to him so much of the land on the western side as
accommodated that building or to grant him a long lease of it. The respondent, after at first agreeing,
ultimately refused to comply with his demand contending that the appellant had agreed to buy only the
eastern half of the property. The appellant brought an action for specific performance of the agreement and
asked for rectification of the written instrument so as to include so much of the western half of the premises
as would enable him to enjoy the property he had purchased. In an oral judgment delivered at the trial on 10
March 1959, the trial judge ordered specific performance of the written agreement but refused to order
rectification of it. In setting out his reasons for his judgment subsequently, the learned trial judge states that
he refused to order rectification on the ground that there had been no mutual mistake and that the parties
were fully aware of what they were buying and selling. The appellant contends that the order made by the
judge does not conform to his findings of fact and seeks

494
from this court a variation of the order providing for rectification of the contract. The respondent seeks
variation of the order to provide for rescission of the contract.
It is logical, before considering whether specific performance should be ordered, to consider the claim of
the respondent for rescission and the claim of the appellant for rectification. As both these claims are
founded on an allegation of mistake, it is convenient to consider first exactly what the parties agreed to and
secondly whether the written agreement (Exhibit B) accurately records the details of this agreement.
The first question involves a review of the evidence and the inferences to be drawn therefrom. The trial
judge has stated that he believed the plaintiff and accepted his evidence. He had the usual advantages in
this respect and I do not see any reason why this court should disagree with this view of the trial judge. The
question therefore involves a review of accepted evidence to consider what inferences should be drawn
therefrom. There is no need to refer to the various authorities which support the proposition that an

appellate court is usually in as good a position as the court of first instance to consider what inferences
should be drawn from accepted evidence and is therefore entitled, and indeed bound, to review the findings
of the court below based on inferences to be drawn from the accepted evidence.
This evidence establishes that the appellant who is a merchant, was interested in the two buildings on
the eastern part of the property because that corner is a business locality, that in April 1955, when the
appellant first went to inspect the property the respondents agent said the respondent wanted $10,000 for
the two buildings and later the respondent herself told the appellant she was selling the two buildings and
the land and retaining the other two buildings and the land on the western side. The respondent also
confirmed that she wanted $10,000 for the two buildings and the land. On 27 May 1955, the respondents
agent called on the appellant and took him back to the premises, when the respondent agreed to accept the
appellants offer of $9,000. At that stage, it is abundantly clear that the respondent and the appellant had
the intention of selling and buying the two buildings and the eastern part of the land on which these buildings
stood and had verbally agreed to this sale and purchase for a price of $9,000.
The parties then went into the respondents house, when the agreement (Exhibit B) was drawn up by
the appellant. Before he drew it up, however, he asked if the property was properly divided. The
respondent said, Yes, the property is properly divided, and produced two certificates (Exhibits A 1 and 2)
purporting to be certificates given by the Town Clerk of Georgetown under s 129 of the Georgetown Town
Council Ordinance, 1918 [BG], certifying that the provisions of that ordinance with respect to subdivision of
lots would not be contravened by the passing of transport for either the eastern half or the western half of
the respondents property. According to the record of the appellants evidence, which the trial judge
accepted, this was the first reference to the eastern half. The only possible inference to be drawn from this
evidence is that the respondent was representing to the appellant that the property, the subject of the sale,
which the parties had twice inspected together, was correctly described as the eastern half of the
respondents property and the subdivision was authorised by the certificates for the purposes of transport.
And in consequence the appellant wrote out the agreement (Exhibit B) describing the property that was
agreed to be sold and purchased in the following terms:
Property purchased :East half of lot forty-one (41) or thirty-four (34) High and Harel Streets, in
Werk-en-Rust Ward, in the City of Georgetown, and county of Demerara, with all the buildings and
erections thereon,

495
Subsequently, when the appellant consulted a carpenter as to the erection of paling, it was found that
the two buildings the appellant had agreed to purchase encroached on the western half of lot 41 and the
appellant took the respondent to his solicitor where she was informed of the encroachment, expressed
surprise and again referred to the two certificates (Exhibits A 1 and 2). The solicitor pointed out that the
certificates appertained only to division of land and not to the buildings and the plaintiff stated in his
evidence that the defendant then consented to give a lease of the strip of land on which the two buildings
rested. This is the evidence of the appellant which the trial judge states he accepted, although it is not clear
whether the trial judge accepted the evidence that, before the solicitor, the defendant had agreed to the
proposal for a lease. There is certainly no express finding to that effect. In view of the consequences that
might follow if there had been such a finding amounting to a variation of the original agreement, one would
have expected some reference in the reasons for judgment. As there is none, I assume, for the purposes of
my judgment, that the trial judge made no finding in relation to this allegation.
In my judgment, this evidence establishes beyond any reasonable doubt that the parties negotiated for,
and agreed to sell and purchase, the two buildings and the land on which they stood. This conclusion is
confirmed by the admission of the respondent in cross-examination that she intended to sell the buildings
and the land on which the buildings were. The evidence equally establishes that, due to the
misrepresentation (presumably innocent) by the respondent that these buildings stood on the eastern half of
lot 41, the land agreed to be sold was wrongly described in the agreement as the eastern half. Any attempt
to assert that the land is correctly described in the agreement leads to an absurd result, because the
agreement speaks of the eastern half together with all the buildings and erections thereon. There has not
at any stage been any dispute between the parties as to the buildings sold and it is now common ground
that those buildings encroach on the western half of the lot. Consequently, it is clear that this description of
the buildings agreed to be sold could not be correct, if the description of the land agreed to be sold is
correct. As there has never been any dispute concerning the buildings and no suggestion whatever that the
buildings were sold for removal, it is abundantly clear that there must be a misdescription of the land agreed
to be sold. Otherwise the appellant could not enjoy the full benefit of all that he had bought. It is equally
clear that that misdescription was caused by the respondents misrepresentation.
In these circumstances the respondents claim for rescission must fail. The intention of a party to a
contract is, in general, to be inferred from his conduct. The conduct of the respondent in the negotiations
with the appellant shows a clear intention to sell the buildings and the land on which they stood. This was

also the intention of the other party. The only common mistake in this case has been in describing the
property sold. This is not so fundamental a mistake as would justify rescission, and in any case this mistake
has been brought about solely as a result of misrepresentation on the part of the party asking for rescission.
For these reasons, the claim for rescission must fail. See Solle v Butcher ([1949] 2 All ER 1107, [1950] 1 KB
671, 66 (pt 1) TLR 448, CA, 31 Digest (Repl) 674, 7699), and especially the summary in the judgment of
Denning LJ ([1950] 1 KB at p 692 et seq), as to the conditions under which an order for rescission will be
made on the ground of common mistake.
I have not overlooked the contention on behalf of the respondent that she would not have sold had she
known that the land to be sold was more than half the lot. The evidence does not necessarily support such
a contention but even if it did, it is clear that this was not the basis on which the appellant entered into this
contract. He was purchasing the buildings and the land on which they stood, whether it was more or less
than one-half, and, therefore, even if the respondents misapprehension had been the very motive that
actuated her, this

496
was not, in the common intention of the parties, a condition of the contract, without which the contract
was not to take effect.
The claim by the appellant to have the contract rectified must also be considered in the light of this
common mistake leading to the misdescription of the property in the agreement. The appellant has not
defined precisely what form the proposed rectification should take. It was submitted on his behalf that the
appellant was really entitled to have the contract rectified so as to include in the property purchased an extra
strip of land right across the property or at least the actual land in the western half on which the buildings
stood, but that the appellant appreciated that this would place upon the respondent the obligation of
obtaining the consent of the Georgetown Town Council under s 130 of the Georgetown Town Council
Ordinance, Cap 152 [BG], and would also leave the respondent with a title by transport to less than one-half
of the lot, which would put her and her successors in title in the position of being unable to give a title by
transport to the balance of this lot without first obtaining the consent of the Georgetown Town Council.
Counsel for the appellant informed the court that it was not an uncommon conveyancing practice in British
Guiana in these circumstances for the purchaser to accept a lease for nine hundred and ninety-nine years in
lieu of title by transport. Counsel referred to a local instance within his knowledge and also to the case of
James Dow v Benjamin Phillips (Demerara Civil Case No 1428 of 1955), as being a case where this
difficulty had been overcome in this manner by order of the Supreme Court of British Guiana. The statement
of claim in the latter case shows that the plaintiff claimed an order for specific performance of an agreement
for sale and purchase of less than half a lot of land, and an order compelling the defendant (the vendor) to
execute a transport or a lease for nine hundred and ninety-nine years of the property. The statement of
defence alleged that it was discovered after the making of the agreement that it was impossible to pass
transport of the property. No record of the evidence is available and there is no written judgment. The order
of the court was that the contract be specifically performed and that the defendant execute in favour of the
plaintiff a lease for nine hundred and ninety-nine years, being an interest which he can now give to the
plaintiff (though he may be debarred from giving full fee simple interest). Enquiries indicate that the
Registrar in British Guiana accepts for sequestration leases for nine hundred and ninety-nine years in cases
where title by transport could not be passed without the consent of the Georgetown Town Council under
these statutory provisions and it does appear therefore that there is a conveyancing practice in British
Guiana of this nature. The statement to this effect on behalf of the appellant was not challenged by the
respondent.
The appellant in the present case is prepared to accept without compensation a lease for nine hundred
and ninety-nine years in lieu of a title by transport in respect of the land in the western half.
In my judgment, the appellant has clearly established his claim to have the contract rectified and the
minimum amount of land in the western half that the parties must be deemed to have agreed to include in
the sale is the actual area on which stands any part of the buildings agreed to be sold. It cannot be said that
any common intention existed in regard to the sale of any other part of the western half so as to include a
strip of land from the western half. For, owing to the shape and relative position of the buildings as disclosed
in the evidence, a strip would include part of the western half on which neither of these buildings stood.
Moreover, if the strip was bounded on the western side by a line drawn at right-angles to the northern and
southern boundaries so as to include every part of the buildings sold it would (as disclosed in the crossexamination of Egbert Bagot) include land on which stand part of the buildings retained by the respondent
and other amenities. It was clearly not within the common intention that these portions of land were to be
included in the transaction. I

497
conclude, therefore, that the only part of the western half which it can be said beyond doubt the parties
intended to include in the land sold, is that part of the western half on which the buildings bought by the
appellant actually stand. In my judgment, the agreement (Exhibit B) should be so rectified as to include this
part of the western half. The principles applied in USA v Motor Trucks, Ltd ([1924] AC 196, 93 LJPC 46, 130

LT 129, 39 TLR 723, PC, 12 Digest (Repl) 151, 960) are clearly applicable to the present case. Indeed,
there is also considerable similarity in the facts. For, in that case, land and buildings which formed part of a
long schedule of property to be included in an agreement, were, by common mistake, not included in that
schedule. That is, in both cases, part of the property intended to be included in the agreement was, by
common mistake, omitted from the agreement. To quote from the repost ([1924] AC at p 202):
Both parties intended the lands and buildings to be included in the schedule. These were
inadvertently omitted. Rectification must follow unless some exceptional ground for excluding this
remedy is advanced.
Here both parties intended to include all the land on which the two buildings stood, but some of the land
was excluded from the agreement by common mistake brought about by misrepresentation on the part of
the respondent and I see no exceptional ground for excluding the remedy of rectification. The agreement
(Exhibit B) must be rectified by including in paragraph 1 thereof those portions of the western half of the lot
on which stands any part of the two buildings agreed to be sold. There was no question of the parties
agreeing to a lease of these portions. The agreement was to sell the land and there can therefore be no
rectification so as to include agreement to lease this extra land.
The next question to be considered is whether in the circumstances there should be an order for
specific performance of the agreement as rectified. It is obvious that damages would not be an adequate
remedy from the appellants point of view. He was interested in this corner site as business premises and it
would clearly be difficult, if not impossible, to compensate him adequately by way of damages for any loss
he might suffer through not acquiring this site. Moreover, the appellant has spent money in repairing the
buildings although, in an appropriate case, this might have been compensated for by damages. In suits
concerning sale and purchase of land, an order for specific performance may often be the only adequate
remedy, and I consider this to be the position in this case.
In considering specific performance, it is, however, necessary to take into account the provisions of ss
127 to 131 of the Georgetown Town Council Ordinance, Cap 152 [BG]. If the agreement is to be carried out
as rectified, title by transport can be obtained only with the prior consent of the Georgetown Town Council. It
is said that, if this consent was obtained and title given by transport, the respondent would be left with a
piece of land to which she could not give title by transport without the consent of the same Council (see s
130 of the Georgetown Town Council Ordinance). It was argued on her behalf that this would impose great
hardship on the respondent. To meet this point the appellant has, as already stated, offered to accept only a
lease for nine hundred and ninety-nine years in respect of the part of the land sold which is in the western
half. It was pointed out that ss 127 to 131 apply only to title by transport and that therefore no consent was
necessary if a title by way of leasehold only was conveyed. As stated previously in this judgement, the court
has referred to other instances of this solution and it appears that there is a conveyancing practice in British
Guiana to conclude a lease for this period where these statutory provisions prevent the passing of transport.
The offer of the appellant to accept this somewhat lesser title in accordance with this conveyancing practice
and without compensation would, if acted upon, eliminate this cause of hardship to the respondent.

498
Whether or not the respondent will actually suffer this suggested hardship depends upon whether the
Council will consent to transport of the two separate portions of land into which lot 41 would be divided if this
agreement was carried out as rectified. There were produced in evidence the two certificates (Exhibits A 1
and 2) which are the certificates required under s 131 of the Georgetown Town Council Ordinance upon
passing of transport for less than a whole lot in order to establish that the provisions of this part of the
Ordinance would not be contravened if transport is passed. That is to say, in appropriate cases the
certificates establish, inter alia, that the Council has consented to transport. These certificates are dated 20
April 1954, a year before the negotiations between the parties were opened. Nor is there any suggestion in
the evidence that the respondent is intending to sell the western half. It appears, therefore, that the Council
will, upon application, grant these certificates in appropriate cases before a sale actually takes place. No
application has, of course, been made as yet in respect of the subdivision which would be entailed in the
agreement as rectified. It would be for the vendor to obtain the necessary certificate to enable her to give
title. In my judgment, the proper course for this court to pursue in these circumstances is to declare what
the court considers to be the respective rights and obligations of the parties to this agreement under the
different circumstances that might arise and to afford an opportunity for a request to the City Council for the
relevant certificates in respect of both parts of lot 41, with, of course, leave to make further application,
should that prove to be necessary.
So far as concerns the rights and obligations of the parties, in my judgment there should be a decree for
specific performance of the agreement as rectified, if transport can be passed in compliance with the
provisions of the Georgetown Town Council Ordinance. If, however, the council is not prepared to issue the
certificates required under s 131 of that Ordinance, the respondent is prevented by those provisions from
giving a title by transport to those portions of the western half included in the agreement as rectified.

However, these provisions apply only to the passing of transport and not to the creation of any other estate
or interest in the land and therefore do not prevent the respondent from conveying to the appellant any
estate or interest other than title by transport. If, therefore, the certificate is refused, in my judgment there
should still be a decree for specific performance requiring the respondent to give title by transport to the
eastern half of lot 41 and to demise to the appellant the land in the western half on which the buildings sold
to the appellant actually stand. The lease should obviously be for the longest term possible and, following
the practice in British Guiana, should be for a term of nine hundred and ninety-nine years.
A lease to this effect would be in accordance with the principles established in those cases where the
vendor, having contracted to sell a greater estate or interest than he could lawfully convey, has been ordered
nevertheless to convey all the estate he lawfully could. The older cases are Bettesworth v St Pauls (Dean &
Chapter) ((1728), 1 Bro Parl Cas 240, 1 ER 541, HL, 12 Digest (Repl) 333, 2578) and Thomas v Dering
((1837), 1 Keen, 729, 6 LJ Ch 267, 1 Jur 211, 48 ER 488, 12 Digest (Repl) 93, 527). In the latter case, the
purchaser could have received all that the vendor contracted to sell if trustees had given their consent. This
they refused to do. The Master of the Rolls (Lord Lengdale) stated the principle thus ((1837),1 Keen at p
743):
It is a general principle, subject, however, to some important qualifications, that, if a party enters
into a contract to sell an estate, and it turns out that he is unable to complete his contract, but is
nevertheless able to perform a part of it, the Court will compel him, if the purchaser chooses, to
execute as much of the contract as he is able.
In that case, because of certain features, there was no decree for specific performance, but those
features do not exist here.

499
Again in Mortlock v Buller ((1804), 10 Ves 292, 32 ER 857, LC, 12 Digest (Repl) 176, 1165) the Lord
Chancellor, Lord Eldon referred to the principle in general terms as follows ((1804), 10 Ves at p 315):
There is a difference between an estate subject to incumbrances, and the case I put; where the
vendor at the date of the contract has not a title. Some authorities go to the length of giving a specific
performance, if the vendor can even by an Act of Parliament obtain a title before the report. I also
agree, if a man, having partial interests in an estate, chooses to enter into a contract, representing it,
and agreeing to sell it, as his own, it is not competent to him afterwards to say, though he has valuable
interests, he has not the entirety; and therefore the purchaser shall not have the benefit of his contract.
For the purpose of this jurisdiction, the person contracting under those circumstances, is bound by the
assertion in his contract; and, if the vendee chooses to take as much as he can have, he has a right to
that, and to an abatement; and the Court will not hear the objection by the vendor, that the purchaser
cannot have the whole.
It is true that, in the two cases from which these quotations are taken, and in more recent cases in
which this principle has been applied (eg Barnes v Wood ((1869), LR 8 Eq 424, 38 LJ Ch 683, 21 LT 227, 17
WR 1080, 42 Digest 520, 844) and Abdul Karim Basma v Weekes ([1950] AC 441, 66 (pt 1) TLR 1047, sub
nom Abdul Karim Basma v Weekes, [1950] 2 All ER 146, PC, 2nd Digest Supp)), the question has been
whether to order the vendor to convey all his estate or interest, the remaining interests being vested in other
persons, whereas in the present case the whole estate is vested in the vendor, and the decree would order
her to convey part only of her interest. But I do not consider this difference affects the application of the
general equitable principle. In Bettesworths v St Pauls (Dean & Chapter) case ((1728), 1 Bro Parl Cas 240,
1 ER 541, HL, 12 Digest (Repl) 333, 2578), the circumstances, so far as this aspect is concerned, were
more similar to the present case. The Dean and Chapter of St Pauls, having an estate in fee simple,
covenanted to grant a lease for a term longer than was permitted by an Act of Parliament enacted
subsequently to the covenant but before the lease was executed. The judgments are not set out, but the
headnote states the principle thus:
Where an equal agreement cannot, by reason of a subsequent act of parliament, or some other
lawful impediment, be performed in the whole; yet the same shall be specifically executed in such part
of it as remains lawful.
There was an order for a lease to be made for the longest period which did not contravene the statute.
That is, the order was in respect of as great an interest as could lawfully be conveyed, although the whole
interest contracted for was vested in the party against whom the order was made.
In Tailby v Official Receiver ((1888), 13 App Cas 523, 58 LJQB 75, 60 LT 162, 37 WR 513, 4 TLR 726,
HL, revsg SC sub nom Official Receiver v Tailby (1886), 18 QBD 25, CA, 20 Digest 334, 770) Lord
Macnaghten when faced with a view which did not seem to be consistent with equity, referred to

Bettesworths v St Pauls (Dean & Chapter) case ((1728), 1 Bro Parl Cas 240, 1 ER 541, HL, 12 Digest
(Repl) 333, 2578) in these terms ((1888), 13 App Cas at p 551):
My Lords, when I find such a concurrence of opinion in favour of a view which seems to me to be
contrary to equity, I may perhaps be forgiven for referring to one authority, a very old one, but none the
worse, I think, for that. Bettesworth v St Pauls (Dean & Chapter) ((1728), 1 Bro Parl Cas 240, 1 ER
541, HL, 12 Digest (Repl) 333, 2578) was decided in this House in 1728. The facts are rather
complicated, but the point may be stated shortly. Before the disabling statute of Elizabeth the dean
and chapter granted a lease for a long term with a covenant for renewal for ninety-nine years. In 1725
a bill was brought to enforce the covenant, or to compel the dean and chapter, who had had the benefit
of the agreement, to grant a renewal for such a term as might by law be granted. The case was twice
argued in Chancery. On the second occasion the Lord Chancellor was assisted by Raymond LCJ,
Jekyll MR, and Price J. The Court (the Master of the Rolls dissenting) declared that the plaintiffs were
not entitled to any relief either in law or in equity; and so the bill was dismissed. On appeal, the
objections which had prevailed in the Court below were repeated. It was

500
urged that the grant of a lease for ninety-nine years was prohibited by the statute, and that the
covenant was one entire covenant, which could not be varied or divided. In answer to these
objections, to quote the words of the report, which gives the arguments of counsel at length, but not
the reasons for the judgment, it was said to be a harsh way of reasoning, that because a person was
now supposed to be prohibited from doing the whole of what he had agreed to do, he therefore should
not do what was in his power and was lawful for him to perform, or to say that because part of a thing
was taken away the whole must be so too, though part was still reserved; and in truth such
construction and reasoning were apprehended to be inconsistent with the rules of equity. All the
judges having been consulted, the House took that view, and it was ordered and adjudged that the
decree should be reversed, and that the dean and chapter should make a new lease for forty years.
In my judgment, it would be contrary to equity if the appellant (being willing to accept what the
purchaser can lawfully convey) were to be deprived of a decree for specific performance solely because the
position may ultimately be that, in respect of a very small proportion of the land agreed to be sold, the
respondent may lawfully convey only a somewhat lesser interest than the interest actually contracted for.
More especially would it be contrary to equity to permit the vendor to take advantage of his inability to
convey so as to escape from his bargain in this case, in view of the fact that the purchaser expressly drew
attention to the very aspect which ultimately presented the difficulty and the vendor represented to the
purchaser that that difficulty would not arise. But for that representation, the parties, at that stage being a
willing vendor and a willing purchaser merely settling the details of a sale in respect of which the property
and the price had already been agreed upon, would obviously have provided for the possible difficulty in the
terms of their agreement. As it appears to be conveyancing practice in British Guiana to accept a lease for
nine hundred and ninety-nine years in cases where this difficulty arises, it is not unlikely that, but for this
misrepresentation, alternative provision to this effect would have been included in the agreement to meet the
point, if it arose. In the light of all these circumstances, it would, in my view, be contrary to equity to refuse
the appellant a decree for specific performance giving him as great an interest in the property he has
purchased as the respondent may lawfully convey.
The exact form the decree for specific performance is to take cannot be determined until it is known
whether or not the Georgetown Town Council will grant the relevant certificates. For this reason, the order of
the court should provide for an opportunity to settle this question before the decree for specific performance
is made and for the proceedings to be remitted to the court below with suitable directions in regard to the
decree for specific performance.
It may also appear to the appellants legal advisers that if the Georgetown Town Council does grant
these certificates, there should be an amendment of the pleadings seeking specific performance by way of
title by transport to all the land now included in the agreement instead of title by transport to the eastern half
and a lease in respect of the balance. The order of the court should, therefore, provide for an opportunity to
seek this amendment. Accordingly, there should be an order to the following effect:
(1) setting aside the order of the court below;
(2) dismissing the respondents claim for rescission;
(3) rectifying the contract of 27 May 1955 (Exhibit B) by including in paragraph 1 thereof after the
words county of Demerara the following additional words:
together with those portions of the western half of the said lot on which stands any part of the two
buildings standing on the eastern half;
(4)requiring the respondent to apply to the Georgetown Town Council for

501

the appropriate certificates under s 131 of the Georgetown Town Council Ordinance and, failing her
making application within thirty days of the date of this order, for the Registrar of the Supreme Court of
British Guiana to apply on her behalf upon the appellant paying to the Registrar any costs, fees or
expenses involved or, if the Registrar sees fit, giving satisfactory security therefor;
(5) remitting the proceedings to the Supreme Court of British Guiana with directions that:
(i) in the event of the Georgetown Town Council granting these certificates in respect of the two
portions into which lot 41 would be divided in consequence of the agreement as rectified, there should
be a decree of specific performance in respect of the agreement as rectified, subject to such
amendment of the pleadings as the Supreme Court may think appropriate having regard to the fact
that the appellant has asked for an order directing a lease only in respect of part of the land and not
title by transport; and
(ii) in the event of the Georgetown Town Council refusing either or both of these certificates, there
should be a decree for specific performance providing for title by transport in respect of the eastern
half of lot 41 and for a lease for nine hundred and ninety-nine years in respect of the balance of the
land included in the agreement as rectified;
(6) reserving general liberty to either party or the Registrar to apply to the Supreme Court of British
Guiana for any further orders or directions required to dispose of these proceedings in accordance with
the judgment of this court.
There should also be an order against the respondent for costs of this appeal and of the proceedings in
the court below and also for any costs or expenses involved in carrying out the terms of that part of the order
relating to the application to the Georgetown Town Council. Any order for costs in regard to any subsequent
proceedings should be a matter for the Supreme Court of British Guiana.
LEWIS J. I agree.
Appeal allowed.

(1959) 1 WIR 502

R v The Chairman And Members Of The Public Service Commission

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
RENNIE, ARCHER AND WYLIE JJ
26, 27, 28 OCTOBER, 9 NOVEMBER 1959

Mandamus Whether the facts in support of the application have been proved Request to remould the
application Whether the duty imposed by law has been performed.
E H made application for an appointment in the legal branch of the Civil Service. His application was
submitted to the Public Service Commission for their recommendation. He did not get an appointment and
applied for a writ of mandamus directed to the Chairman and Members of the Public Service Commission
enjoining them that they advise the Governor to appoint him to the legal branch of the Civil Service.

502
In a supporting affidavit he alleged that he was told by three members of the Commission that he was
recommended for appointment but that this was refused by the then Chief Justice. This allegation was
denied on affidavit by every member of the Public Service Commission. There was also evidence that the
Chief Secretary writing for the Governor had informed E H that the Commission had not found it possible to
recommend his appointment.
On the hearing of the appeal a request was made to mould the application so as to enjoin the Commission
to advise the Governor on E Hs application.
Held: the evidence discloses that the Commission did make a recommendation to the Governor and so
discharged the duty cast on them.
Held further, by Rennie J: (i) that the balance of probabilities is against the acceptance of the facts
supporting the application.

(ii) that it is unlikely that a court would mould the application so as to give consideration to it after it had
rejected the facts on which the application was made.
Held further, by Wylie J: that it is not improper for the Commission to consult the Chief Justice and to
change their views after such consultation.
Appeal dismissed.
Editorial Note: This case is on appeal to the Judicial Committee of the Privy Council.
Case referred to
R v Leicester JJ (1825), 4 B & C 891, n, 7 Dow & Ry K B 373, n, 107 E R 1292, subsequent proceedings
(1826), 7 Dow & Ry K B 708, 16 Digest 285, 975
Appeal
Appeal by E H from the judgment of the Supreme Court of Jamaica (Trial DivisionMacgregor CJ, CoolsLartigue and Semper JJ) discharging an order Nisi. The facts appear in the judgment of Rennie J.
Rees QC and Parkinson (instructed by Willoughby) for the appellant
Cundall QC (instructed by Burke) Attorney-General for the respondents
RENNIE J. The appellant in this appeal is seeking to have a rule nisi in mandamus proceedings made
absolute by means of the reversal of an order of the Court of Appeal.
The appellant is a barrister-at-law. Some time in about March 1956, he made application for admission
to the legal branch of the Public Service of Jamaica. His application was submitted to the respondents on
22 March 1956, and it was considered by them on 10 August 1956. They interviewed him, consulted public
officers and again considered the matter on 31 August 1956, when in the exercise of their discretion they did
not recommend him for an appointment. Nothing further seems to have taken place until 7 May 1958, when
the appellant wrote to the Chief Secretary of Jamaica, and later received the following letter in reply:
THE CHIEF SECRETARYS OFFICE,
P O Box 605,
KINGSTON,
JAMAICA, B W I
12th May 1958
C 11106/9-77.
Sir:I am directed to refer to my letter of the 7th May and to inform you that His Excellency has made
full enquiries in regard to your application for appointment to the Government Service.
2. As you know, the Public Service Commission (which deals with the filling of junior legal posts)
has hitherto not found it possible to recommend your appointment. His Excellency is not prepared to
act in such a matter without the advice of the Public Service Commission but he is satisfied that

503
your name is still before the Commission and will be considered as opportunity arises in the future.
3. His Excellency notes that you have also submitted an application to the Judicial Service
Commission (which considers the filling of the Judicial posts of Resident Magistrate and Judges of the
Supreme Court other than the Chief Justice). Your application will be considered by this Commission
when it next meets, and, in the meantime, there is no further action that His Excellency can take in this
matter.
I am, Sir,
Your Obedient Servant,
(Sgd) John Stow
Chief Secretary.
E F Hanna, Esq,
7 Church Street,
Kingston.
On those facts and on the allegations in a supporting affidavit which I shall set out hereafter, the
appellant sought and obtained leave to apply for a writ of mandamus directed to the respondents enjoining
them that they advise His Excellency the Governor to appoint him to the legal branch of the Public Service of
Jamaica. The allegations in his supporting affidavit are in these words:

In June or July 1956, I was interviewed by the Public Service commission and was subsequently
told by three members of the Commission that I was recommended for appointment to the legal
branch of the public service but that this was refused by Sir John Carberry, the then Chief Justice.
In separate affidavits each member of the Public Service Commission denied making any such
statement to the appellant and there the matter rested until the last day of the hearing to show cause, when
the appellant filed three affidavits in which he named three persons as the persons who made the
statements to him. Of the three persons named, two are members of the Public Service Commission and
the third is its Secretary.
It is perhaps as well that I should deal with the conflict created by the affidavits, before turning to
consider the provisions of the Public Service Commission Law, Cap 326 [J]. On the one hand, the appellant
asserts that three members of the Public Service Commission made the statements to him. He did not at
first say who they were and he identified the time and occasion by saying he was interviewed in June or July
1956, by the Public Service Commission, and was subsequently told what he stated. In a later affidavit he
stated that in May or June 1957, the Honourable C R Campbell made the statement to him. In another
affidavit he said that on 12 May 1958, Mr C C Sandford told him that the Commission had decided to
recommend him. The dates disclosed in these later affidavits would seem to bear little relationship to June
or July 1956. They are subsequent to those months but are so distant from them as to cause one to wonder
why it was thought necessary to create such a relationship. In one case the exact date, that is, 12 May
1958, was stated in the subsequent affidavit, yet in the supporting affidavit no better information was given
than subsequent to June or July 1956. On the other hand, every member of the Public Service Commission
has stated that he made no such statement to the appellant. Can I then say that on a balance of
probabilities it is proved that the members of the Commission made the statement to the appellant? I think
not. The members of the Public Service Commission are selected by the Governor to deal with matters
affecting the Civil Service of Jamaica. It is only reasonable to suppose that he would select men whose
character is above taint of suspicion. Would persons of such character commit a breach of the Official
Secrets Law for no apparent reason? And it

504
would be a breach of the Official Secrets Law to disclose the decision of the Commission to an
unauthorised person. And if they did, would they go further and swear falsely? Those are matters I think I
ought to take into account and have taken into account in deciding whether I should accept the appellants
allegations.
Having dealt with the facts, it is now necessary to look at the law. Section 7 of the Public Service
Commission Law, Cap 326 [J], sets out the functions of the respondents. It provides:
7. Functions of the commission.(1) The governor shall require the Commission to advise him in
relation to the discharge of any functions which the Governor may for the time being be required by
statute to discharge after consultation with the Commission.
(2) The Governor shall require the Commission to advise him regarding
(a) the filling of such vacancies in the public service as may be prescribed;
(b) the promotion of an officer from such grades and classes of the public service to another grade
and class as may be prescribed;
(c) any matter affecting the public service which may be prescribed or which the Governor may
refer to the Commission
and the Commission shall for the purpose of discharging their functions have the right of direct
access to the Governor.
(3)In this section prescribed means prescribed by regulations under section 13 of this Law.
The appellant contends that this section casts a duty on the respondents to advise the Governor. And
he further contends that if the facts set out in his affidavits are accepted, then the respondents had decided
to recommend him for appointment and they are in duty bound to advise the Governor in accordance with
their decision. This was the first submission made to this court, and so it should be, having regard to the
application for leave to apply for the writ. The application asks the court to command the respondents to
advise the Governor to appoint the appellant to a post in the legal branch of the Public Service of Jamaica.
That submission must necessarily fail, if the facts stated by the appellant in his affidavits are not accepted by
the court. They have not been accepted by me and in my view that submission fails.
As a second limb to his argument, counsel for the appellant asked this court to mould the writ so as to
require the respondents to advise the Governor in regard to the appellants application for appointment.
This request is based on the authority of R v Leicester JJ ((1825), 4 B & C 891, n, 7 Dow & Ry K B 373, n,
107 E R 1292, subsequent proceedings (1826), 7 Dow & Ry K B 708, 16 Digest 285, 975). By such a
request the appellant is asking for two bites of the cherry, so to speak. In the first place he applies for one

thing and puts forward the facts to support it, and in the second, he says if you dont believe my facts then
please mould my application so as to enable me to succeed in another way. I very much doubt that R v
Leicester JJ ((1825), 4 B & C 891, n, 7 Dow & Ry K B 373, n, 107 E R 1292, subsequent proceedings
(1826), 7 Dow & Ry K B 708, 16 Digest 285, 975) is an authority for such a proposition. A prerogative writ is
granted as a matter of discretion and a court may with justification refuse to exercise its discretion in favour
of an applicant who has tried to mislead it by a statement it is unable to accept. Be that as it may, this court
will not interfere with the exercise of the discretion of the court below unless it can be shown that the
discretion was exercised (a) under a mistake of law, (b) in disregard of principle, (c) under a
misapprehension of the facts, (d) by a court that took into account irrelevant matters, or (e) in a way that the
order would result in injustice.
The appellant has not shown that the court below improperly exercised its discretion. Instead of so
doing, the appellant has so shaped his case as to make it appear that this court is called upon to exercise
the discretion of the court below. This I will certainly not do. I will nonetheless consider whether the
discretion was exercised under a mistake of law or in disregard of principle. This, of course, can only arise if
the writ is moulded so as to embrace the

505
second limb of the appellants argument. About this I have already expressed grave doubts as to
whether a court would accede to the request to mould the writ. But assuming that it would be so moulded,
have the respondents been in breach of their duty to advise the Governor? I think not. The only advice the
respondents can be required to give is one is respect to an application for appointment in the legal branch of
the Civil Service. Have they given such advice? I would say they have. The letter of the Chief Secretary
exhibited to the appellants affidavit of 10 December 1958, in my view, indicates that the respondents have
advised the Governor that they cannot recommend the appellant for appointment. That letter states that His
Excellency has made enquiries in regard to the appellants application for appointment to the Government,
and goes on to state: As you know, the Public Service commission (which deals with the filling of junior
legal posts) has hitherto not found it possible to recommend your appointment. That letter shows that the
respondents had decided not to recommend the appellant for appointment and it also shows that that
decision had come to the knowledge of the Governor. That, in my view, puts an end to the matter.
For the above reasons, I would dismiss the appeal with costs.
ARCHER J. I agree with the conclusion reached by the learned President. The argument of counsel for the
appellant that it was the duty of the Public Service Commission to recommend that the appellant be
appointed to the Public Service or that he be not appointed is quite untenable. The fallacy lies in assuming
a question put to the Commission in a particular form and requiring one of two specific answers. There is no
justification whatever for any such assumption.
Counsel further contended that the affidavits sworn to by the appellant establish that either the
Commission has not yet advised the Governor with regard to the appellants application for employment in
the Public Service, or, that despite having decided to recommend the application, the Commission has not
communicated its recommendation to the Governor. Whether the failure of the respondents or any of them
to file counter-affidavits was an imprudent course to adopt is, in my view, of no consequence. The proper
inference to be drawn from the letter of the Chief Secretary in reply to the appellants letter of 7 May 1958, is
that the Commission decided not to recommend the appellant for appointment and so informed the
Governor. The Commission thereby tendered advice to the Governor with respect to the appellants
application and there is nothing upon which a writ of mandamus either in the original form sought or in any
amended form can be made to operate. The application for the writ was entirely misconceived and I agree
that the appeal should be dismissed with costs.
WYLIE J. I agree that this appeal should be dismissed with costs to the respondents. It is obvious that the
respondents must have a discretion as to whom to recommend to the Governor for appointment to the
prescribed public offices, for it is clearly their function to determine which applicants are, in the words of reg
10 (1) of the Public Service Commission Regulations, 1952 [J], suitable candidates for the respondents to
recommend for appointment. Indeed, it was not argued on behalf of the appellant that the Commission had
no such discretion.
Nevertheless, the writ addressed to the respondents enjoined them to advise His Excellency the
Governor of Jamaica to appoint the said Eli Farid Hanna to the legal branch of the Public Service of Jamaica
or to show cause to the contrary. From the language used, this appears to be a direction to the
Commission to decide upon an application in a certain manner. If that is so, it is clear from what has been
said that the writ should not be made absolute, because it would amount to an order from the court to the
commission com

506

-pelling them to exercise their discretion in a certain mannerin favour of an applicantand obviously no
court will issue an order of this kind to a body in which by law such a discretion has been vested in respect
of these applications.
On behalf of the appellant, however, the further submission was made that the affidavits showed that
the Commission had actually exercised their discretion and made a decision on the application in favour of
the applicant and that the writ sought merely to compel the respondents to fulfil their statutory duty of
conveying that decision to the Governor and should therefore be made absolute. Alternatively, it was
submitted that if the form of the order was not to that effect, this court had power to remould the form of the
order to give it that effect. As to the contention that the language used in the writ merely intended that the
Commission should tender its advice to the Governor, I accept the submission made on behalf of the
appellant that there is a statutory duty cast on the respondents of tendering advice to the Governor when a
matter is submitted to it for advice by, or on behalf of, the Governor, provided that the matter is one which
the Governor submits to the Commission in pursuance of the Public Service commission Law [J], including
the regulation made thereunder. The application made by the appellant was such a matter. See s 7 (2) (c)
of the Law. The whole of the evidence, and especially the affidavits of 5 January 1959, sworn by the
Chairman and other members of the Commission, make it clear that the application was referred to the
commission by, or on behalf of, the Governor and that the Commission did in fact consider it. The question
that arises, therefore, is whether it has been established that the Commission failed to fulfil its statutory duty
of advising the Governor in regard to this matter. The appellant seeks the issue of this prerogative writ and
the onus is therefore on him of establishing all facts necessary to justify the issue of this writ, including, on
the view of the application now under consideration, the fact that the Commission has failed to advise the
Governor.
As I understand counsels argument on behalf of the appellant, he submitted that there were two
features of the evidence that established that the Commission had failed to advise the Governor. The first
feature is relevant to the argument that the writ should be made absolute in its present form and the second
to the alternative argument that the writ should be remoulded.
The first feature consisted of the references in the affidavits sworn by the appellant on 7 January and 8
1959, recording conversations he had had with the Chairman and one member of the Commission. (There
was a further affidavit recording a conversation with a Mr A B Smith who it is now conceded is not a member
of the Commission, thus making the contents of this affidavit inadmissible as being hearsay evidence.) In the
first affidavit, the appellant swears that the Chairman, in the course of a discussion in the appellants family
circle, said that the Commission had recommended my appointment but that Sir John Carberry had turned
it down. In the other affidavit, the appellant swears that, on his own initiative, he called at the business
premises of the member concerned and raised the question of his application and that the member told him
the Commission had decided to recommend me for appointment but that Sir John Carberry had blocked it.
The appellant contended that this evidence established that the Commission had made a decision on the
appellants application, but had failed to fulfil their statutory duty of conveying that decision because,
subsequently to their decision, Sir John Carberry, the then Chief Justice of Jamaica, had expressed
disapproval of the application. It was submitted that the members of the Commission were improperly
influenced and persuaded against doing their statutory duty by treating the views of Sir John Carberry as a
veto against their decision.
In the first place, the evidence in regard to these conversations is in an unsatisfactory state. The
affidavits in which they occur were apparently filed and served on the respondents legal representatives
during the latter part of

507
the hearing on the return to the writ and the Attorney-General informed this court that, in the view he
took of these proceedings, he did not consider that there was any need to delay the hearing in order to file
replies to these affidavits. The hearing therefore proceeded without the Chairman and member having been
given an opportunity to reply to these more detailed allegations. This must be considered a very
unsatisfactory state of affairs, having regard to the fact that these affidavits contain very serious and detailed
allegations against persons of high standing in the community who have been appointed by the Governor to
fulfil important public duties in positions involving a high degree of trust and confidence.
I agree with much of the more detailed criticism of the evidence of the appellant on this point in the
judgment of the learned President. However, having regard to the view that I take of this aspect of these
proceedings, I do not find it necessary to make a finding as to the truth of these allegations and in view of
this and the incomplete nature of the evidence, I refrain from doing so.
This evidence, even if it were to be accepted, would only indicate to me that, at one stage of their
consideration of this application, the Commission was minded to recommend the applicant for appointment.
In considering an application like this covering any junior appointment in the legal service of the
Government, it is obvious that the Commission ought to consult (inter alia) the Chief Justice. This evidence
would further indicate that the respondents took this obvious step and thereafter were not in favour of
recommending the appellant.

By no stretch of the imagination could I arrive at the conclusion that the Commission were improperly
influenced or deterred from fulfilling their statutory duty in considering an application for a legal appointment
because, after consulting the Chief Justice and taking his views into account, they had changed their mind.
Nor do I see that anything either improper or beyond their powers would have occurred if the Commission
had actually arrived at a decision and, after subsequent consultation with a person whom they are entitled,
and ought, to consult, and consequent further consideration, had altered their decision. Consequently I do
not accept the view that even if the Commission had arrived at a decision and subsequently altered it in
these circumstare two answers to this. In the first place, as I have alread because they had not
communicated their first decision to the Governor.
As to the alternative submission that the order might be remoulded so as to compel the Commission to
communicate their decision to the Governor, the court was referred to a second feature of the evidence, viz,
that nowhere in the affidavits did the respondents say in so many words that they had communicated their
advice to the governor. In my opinion, there a said, the onus is on the appellant to establish that the
decision was not communicated to the Governor and not on the respondents to establish that they did this.
In the second place, the form of the writ directed the respondents attention to a demand that they advise the
Governor to appoint the appellant, not that they merely communicate their advice, whatever it may be. In
the return to the writ, the respondents set out that suppose that he would select men whose character is
above tai they have not advised His Excellency the Governor of Jamaica to appoint the said Eli Hanna to
the legal branch of the Public Service of Jamaica as by the said writ we are commanded for the following
reasons. In the course of giving their reasons, the respondents state that they did not advise His
Excellency the Governor of Jamaica to appoint the appellant and they further submitted that, for the
reasons given they were both entitled and bound not to advise His Excellency the Governor of Jamaica to
appoint the appellant. Similarly, in their affidavits of 5 January 1959, the respondents state that the
Commission, after a full and sufficient enquiry did not recom-

508
mend the applicant for appointment and later that they were both entitled and bound not to
recommend the said Eli Hanna. It is clear that the respondents were quite properly directing their attention
to the actual demand in the writ and this might very well explain why there is no specific statement that
advice was actually communicated to the Governor. In view of this, to remould the writ at this stage in the
manner suggested and make the order absolute, would be to determine the issue without having given the
respondents a proper opportunity to reply to what is, in my view, a different allegation from that contained in
the writ. No court would do this. Finally, I agree with the learned President that, far from the evidence
supporting this fresh allegation, the letter of 12 May 1958, from the Chief Secretary indicates that the
Commission has communicated some advice to the Governor concerning this application, and it cannot
therefore be said to be in breach of its statutory duty to advise the Governor on this application.
I do not accept the invitation of counsel for the appellant to pronounce as to whether the Commission
should merely advise whether to appoint or not to appoint or whether its statutory duty is complied with if an
application is held over, perhaps with interim advice in the meantime. The law is framed in general terms
and it is entirely a matter for the Governor and the Commission to determine the precise manner in which
the duties are to be carried out. They are matters which can obviously be regulated either by regulations or
by the manner in which matters are submitted to the Commission and it is not for this court to suggest the
procedure by which any branch of the Executive should go about performing its statutory functions so long
as it is not in actual breach of the law regulating the performance of those functions.
Appeal dismissed.

(1959) 1 WIR 509

Naraysingh v Naraysingh And Another

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
RENNIE, ARCHER AND WYLIE JJ
28, 29, 30 OCTOBER, 9 NOVEMBER 1959

Divorce Evidence Admissibility Evidence of adultery committed after the date of the petition is
irrelevant and inadmissible where direct evidence has been given in proof of the adultery charged in the
petition Effect of an order allowing the appeal where the co-respondent has not appealed.

A petitioner in divorce proceedings alleged that his wife committed adultery with ED on 20 January 1957,
and led evidence to prove they were caught in the act. He also led other evidence to prove that his wife and
ED committed acts of adultery in the year 1958 after the date of the petition.
The court granted a decree nisi on the petition and the respondent appealed but the co-respondent ED did
not.
Held: (i) that the evidence of adultery committed after the date of the petition is wholly irrelevant to prove the
charge in the petition and should not have been admitted in evidence;
(ii) that the effect of allowing the respondents appeal is to destroy the allegation of adultery and the finding
of adultery against the co-respondent should also be set aside.

509
Appeal allowed. New trial ordered.
Cases referred to
Boddy v Boddy & Grover (1860), 30 LJPM & A 23, 27 Digest (Repl) 329, 2731
Wales v Wales [1900] P 63, 69 LJP 34, 27 Digest (Repl) 329, 2732
Rutherford v Richardson [1923] AC 1, 92 LJP 1, 128 LT 399, 39 TLR 42, 67 Sol Jo 78, HL, affg SC sub nom
Rutherford v Rutherford, [1922] P 144, CA, 27 Digest (Repl) 592, 5536
Appeal
Appeal by the wife from the judgment of the Supreme Court of Jamaica (Trial DivisionSmall J) dated 10
April 1959, granting a decree nisi. The facts appear in the judgment of Archer J.
Thompson (instructed by Daisy Chambers) for the appellant
Rowe and George (instructed by Gresford Jones) for the respondent
ARCHER J. This is an appeal against the decision of a judge of the Supreme Court of Jamaica on a petition
for divorce on the ground of adultery brought by the respondent, pronouncing a decree nisi against the
appellant and dismissing her cross-petition for divorce on the ground of cruelty. In addition to the grounds of
appeal on the record counsel for the appellant was allowed to argue the additional ground that the trial judge
was influenced in arriving at his finding of adultery by a consideration of inadmissible evidence.
A single act of adultery alleged to have taken place on 20 January 1957, was charged although the
petition contained the usual allegation that the appellant had frequently committed adultery with the corespondent prior to the date of the petition. The petition is dated 11 February 1957. The appellant and the
co-respondent filed their answers on 8 March 1957, denying adultery and the appellant further crosspetitioned for divorce on the ground of cruelty. On 20 March 1957, the respondent filed his reply denying the
allegations in the appellants answer and cross-petition. It appears that the appellant also charged the
respondent with adultery and that the woman named intervened but this charge was not proceeded with at
the trial and nothing further need be said about it. On 23 September 1958, the respondent made application
for leave to file a supplementary petition alleging a further act of adultery committed by the appellant and the
co-respondent between 9 August and 10, 1958. Leave was granted and the supplementary petition was
filed on 2 October 1958. On 20 February 1959, the respondent applied for the certificate of the Registrar
that the proceedings in the cause were correct and that the pleadings were in order and the Registrar
granted his certificate.
The cause came on for trial on 6 April 1959. The petitioner gave evidence in support of the allegation of
adultery on 20 January 1957, and was cross-examined. During his re-examination questions were put to
him by his counsel with a view to eliciting evidence in proof of the allegation of adultery in the supplementary
petition. These questions were objected to by both counsel for the respondent and counsel for the corespondent but the judge allowed the questions, giving leave, however, to cross-examine on the new
evidence. The petitioners witnesses in support of the charge of adultery in the petition then gave evidence
and they were followed by a private investigator who gave evidence of alleged adultery between 9 August
and 10, 1958. The petitioner was recalled and was cross-examined on his evidence in connection with the
allegation in his supplementary petition and later a witness gave evidence of adultery alleged to have been
committed in January 1958.
In his reasons for judgment the trial judge says:

An act of misconduct on the night of 9 August 1958, was charged in a supplementary petition by
the petitioner but in the absence of proof of service this evidence, together with evidence of an act on a
day in January 1958,

510
though objected to was successfully advanced to prove subsequent acts of association.
Counsel for the appellant has submitted that this evidence was inadmissible and must have affected the
mind of the judge when he was considering the evidence with regard to the act of adultery of 20 January
1957. Counsel for the respondent has contended that the evidence was admissible for the purpose of
assisting the judge in determining the nature, character and quality of previous acts of familiarity and has
relied on Boddy v Boddy & Grover ((1860), 30 LJPM & A 23, 27 Digest (Repl) 329, 2731) and Wales v
Wales ([1900] P 63, 69 LJP 34, 27 Digest (Repl) 329, 2732). He submitted further that even if the evidence
was inadmissible the onus was on the appellant to show that a miscarriage of justice had been caused and
that she had failed to do so. Finally he submitted that it did not necessarily follow from the passage in the
reasons for judgment to which I have referred that the judge had taken the evidence concerning acts of
adultery in 1958 into account in determining whether adultery had been committed on 20 January 1957.
In my view, there is no ambiguity about the meaning of the passage and it seems to me that the judge
has clearly indicated that he has used the evidence complained about for the purpose of strengthening the
probability that adultery was committed on 20 January 1957, but even if the view can be taken that he has
given no such clear indication it would be impossible to say that he has not made use of the evidence and
that he has arrived at his finding without reference to it.
In Boddy v Boddy & Grover ((1860), 30 LJPM & A 23, 27 Digest (Repl) 329, 2731), which was tried on 6
December 1860, the date of the latest act of adultery charged was 31 October 1857. Evidence of acts of
indecent familiarity before the date of the petition was given and the question was whether evidence that the
respondent and co-respondent had lived together as man and wife could be admitted. The Judge Ordinary
said:
Undoubtedly proof of acts of adultery subsequent to the date of the petition would not sustain the
suit; but suppose a case in which the only evidence of adultery prior to the date of the petition was that
a man and a married woman had left England together for France, and that on the way they had
passed one night at the same hotel. That, without more, would not be sufficient proof of adultery; but,
if evidence were given that they subsequently to the date of the petition were living together as man
and wife in Paris, it would have a legitimate bearing on the question of adultery charged, as it would
tend to show the character and quality of their previous acts.
In Wales v Wales ([1900] P 63, 69 LJP 34, 27 Digest (Repl) 329, 2732), which was an undefended suit
for divorce tried on 18 December 1899, the petition which was filed on 14 September 1899, alleged that the
respondent had frequently committed adultery with the co-respondent and that on 21 August 1899, they had
left Ramsgate together and had since that date lived together as man and wife at various places including
Broadstairs and had habitually committed adultery together during that period. Evidence was admitted that
in October and November 1899, the respondent and co-respondent had lived together as Mr and Mrs Fowler
at Broadstairs. It is significant that counsel for the petitioner in that case went no further than to invite the
court to use that evidence to show what inference should be drawn from the acts of familiarity relating to the
period anterior to the date of the petition of which evidence had already been given.
In Latey On Divorce, 14th Edn, at p 76, the author says:
Adultery, to be a ground for a divorce, must have been committed before the date of the petition;
but where acts suggestive of adultery have occurred before the date of the petition, the court allows
the petitioner to prove adultery committed after the petition, on the ground that such evidence tended
to show the true nature of the earlier acts.

511
He cites Boddy v Boddy & Groves ((1860), 30 LJPM & A 23, 27 Digest (Repl) 329, 2731) and Wales v
Wales ([1900] P 63, 69 LJP 34, 27 Digest (Repl) 329, 2732) as authority for this statement of the law. There
is a similar statement in Rayden On Divorce, 7th Edn, at p 133, and the same cases are referred to. The
authors of Halsburys Laws, 3rd Edn, Vol 12, however, extract much less from these two cases and express
their view in these words at p 239:
Although evidence as to certain acts of familiarity may be insufficient in itself to prove charges of
adultery made in a petition, the court is at liberty to consider the fact that since the date of the petition,
the man and woman charged have lived together as husband and wife.

The two usual methods of proof of adultery are by the direct evidence of eyewitnesses or by
circumstantial evidence from which adultery may be inferred. The petitioner put forward himself as an
eyewitness to the adultery which he alleged in his petition and two witnesses to corroborate him as to the
circumstances surrounding the events of 20 January 1957. He was not asking the court to infer adultery
from acts of familiarity. If his evidence was believed there was direct proof of adultery and there was no act
or series of acts of the respondent and co-respondent the nature, character or quality of which had to be
ascertained by recourse to their subsequent conduct. The evidence of adultery committed on two occasions
in 1958 was that of alleged eyewitnesses. It was wholly irrelevant to proof of adultery on 20 January 1957,
and should not have been admitted by the judge and, in the circumstances, I do not think that the decree nisi
pronounced by him should be allowed to stand.
The appellant alleged several acts of cruelty against the respondent on various dates between 12 May
1951, and 24 January 1957. The judge rejected her cross-petition. With regard to some of the incidents to
which she deposed he was not prepared to accept her word without corroboration and with regard to other
incidents he accepted her word but found that the petitioner had acted in circumstances of great
provocation. Five of the acts of cruelty charged relate to the date of the alleged adultery on 20 January
1957, and the days immediately following that date. These accusations are bound up with the events of the
night of 20 January 1957, and must therefore be considered in relation to those events. In my view, there
should be a retrial on the issues raised in both the petition and the cross-petition.
The co-respondent is not a party to this appeal and the question is whether the case against him should
also be retried. In Rutherford v Richardson ([1923] AC 1, 92 LJP 1, 128 LT 399, 39 TLR 42, 67 Sol Jo 78,
HL, affg SC sub nom Rutherford v Rutherford [1922] P 144, CA, 27 Digest (Repl) 592, 5536) a wife
petitioned for the dissolution of her marriage with the respondent on the ground of cruelty and adultery with
the intervener. The respondent did not defend the suit. The trial judge found both the cruelty and the
adultery proved and granted a decree nisi. Upon an appeal by the intervener the Court of Appeal found that
the petitioner had failed to establish that adultery had been committed between the respondent and the
intervener and rescinded the decree nisi and substituted a decree for judicial separation. An appeal by the
petitioner to the House of Lords was dismissed and the order of the Court of Appeal affirmed. In that case
the allegation of adultery was destroyed by the intervener in the absence of the respondent. I think that a
similar result should follow in this case and that the finding of adultery against the corespondent should also
be set aside. I would allow the appeal, set aside the decree nisi and the order for costs and order a new
trial. The costs of the appeal to be paid by the respondent. The costs of the first trial and of the new trial to
abide the event.
RENNIE J. I concur.
WYLIE J. I also concur.
Appeal allowed. New trial ordered.

512
(1959) 1 WIR 513

Ballen v The Kingston And St Andrew Corporation

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
RENNIE, ARCHER AND WYLIE JJ
2, 3, 4, 9 NOVEMBER 1959

Contract Master and servant Repudiation Effect of employees dishonesty and imprisonment.
AB, an Inspector of Poor, misappropriated 559 10s of his employers money and was sentenced to 9
months imprisonment. On his conviction his employers terminated his employment. After his release from
prison he claimed salary up to the date of the writ and he also claimed a declaration that the purported
dismissal was illegal. His claims were based on the fact that no investigation was held under s 22 of the
Poor Relief Law, Cap 299 [J]. That section provides that where any Parochial Board is of the opinion that
poor relief is not being administered properly or efficiently the Parochial Board may hold an investigation into
the administration of such poor relief and it goes on to provide that if after such investigation the Parochial
Board is of the opinion that any poor relief officer has been negligent in the performance of his duties or is
unfit, incompetent or incapable of discharging his duties, then such Parochial Board may dismiss without
notice or degrade any such officer.

Held: that s 22 can have no application to a case where the employee has evinced an intention not to be
bound by his contract of service.
Appeal dismissed.
Case referred to
Freeth v Burr (1874), LR 9 CP 208, 43 LJCP 91, 29 LT 773, 22 WR 370, 12 Digest (Repl) 379, 2970
Appeal
Appeal by AB from the judgment of the Supreme Court of Jamaica (Trial DivisionDuffus J) dated 23 April
1959, dismissing the claim. The facts appear in the judgment of Rennie J.
Alberga and Leiba (instructed by Samuel & Samuel) for the appellant
Blake QC and Coore (instructed by Dunn Cox & Orrett) for the respondents
RENNIE J. At the close of the hearing of the appeal in the above matter the court dismissed the appeal and
stated that it would give its reasons for so doing on some later occasion. I now give my reasons why the
appeal should be dismissed and my decision with respect to the costs of the appealthe question of costs
having been left undecided by the court.
The appellant was seeking to upset a judgment of the court below which dismissed his claim for 1,858
12s 6d for arrears of salary for the period 1 April 1954, to 31 July 1956, and for a declaration that the
purported dismissal of the appellant was illegal, ultra vires and invalid.
The appellant was appointed Inspector of Poor for the parish of Kingston in April 1951, and was so
employed on 6 April 1954, when it was discovered that cash entrusted to him by his employers (the
respondents) was short to the extent of 559 10s. By letter of 7 April 1954, the acting Town Clerk
suspended the appellant from duty as an Inspector of Poor on half pay pending such further action as may
be taken.
On 28 May 1954, the appellant was charged in the Resident Magistrates Court with the offences of
falsification of accounts, forgery and uttering forged documents. All the offences so charged were in relation
to his office of Inspector of Poor. He pleaded guilty to the seven counts of the indictment that so charged
him and was sentenced to 9 months imprisonment with hard labour on each count to run concurrently.
On 31 May 1954, the acting Town Clerk wrote to the appellant as follows:

513
I have to inform you that consequent on your actions as Inspector of Poor in the corporate area for
which you were charged and convicted in the Resident Magistrates Court for offences including
falsification of accounts, forgery and uttering, you have been summarily dismissed from your position
as Inspector of Poor in the service of the Corporation.
The appellant served the sentences of imprisonment imposed on him and was released from prison on
28 November 1954.
On 22 April 1955, he wrote to the Town Clerk enquiring by whom he was summarily dismissed from the
service of the respondents and the chapter and section of the law under which this had been done.
On 26 May 1955, the Town Clerk replied informing him that his employment was terminated by reason
of his conviction and imprisonment and his inability to perform the duties of an Inspector of Poor.
Subsequently to 28 May 1954, the respondents took steps to fill the post of Inspector of Poor for the
parish of Kingston but encountered some difficulty in finding a suitable candidate with the necessary
qualification. This caused some delay in making an appointment which in fact was not made until 18 July
1956, when Mr S S James was appointed as from 1 December 1955. This appointment was made six days
after the issue of the writ in these proceedings but it was the culmination of a process that started not very
long after the conviction of the appellant. In this connection it is not necessary in my view to set out the
various steps taken by the respondents but I consider it worth while to set out the minutes of the Poor Relief
Committee of 25 May 1955. The minutes are as follows:
Minutes Of Meeting Of Poor Relief (Outdoor) Committee On The 25th May, 1955: (Page 158 of
Journal):
Appointment of Inspector of Poor C/7/304:
Left The Meeting:
At the committees request the Acting Inspector Of Poor Left The Meeting. Read the following
minute from the Town Clerk
poor relief committee:

re Appointment of Inspector of Poor:

The further period for which Mr G Kinlocke, Area Officer of the Board of Supervision, was seconded
to act as Inspector of Poor will expire at the end of the present month and consideration should now be
given to the matter.
At a discussion which took place between His Worship the Mayor, the Chairman of the Poor Relief
Committee and myself, the opinion was expressed that steps should be taken towards filling the post
permanently, and to this end it is suggested that applications be invited in the press from qualified
persons.
In view, however, that the results of the examination qualifying persons for the post of Inspector of
Poor, Master and Matron Poor Houses held this year have not yet been published and consequently a
number of persons might be debarred from applying, it is suggested that this proposal await the
publication of the results of the examination, which, it is expected, should be out by September of this
year.
In the meantime it is recommended that Mr Kinlockes secondment continue for a further period of
four months.
(Sgd) B L Daniels
For Town Clerk
23/5/55.
The Committee directed that the Board of Supervision be requested to approve of Mr Kinlockes
secondment being continued for a further period of six months as from 1 June 1955.

514
The Committee also decided that no useful purpose would be served by inviting applications in the
press.
From those minutes it seems clear that the Committee regarded the post of Inspector of Poor for the parish
of Kingston as being vacant.
At the trial of the action the learned trial judge took the view that the contract of service was frustrated
by the imprisonment of the appellant and he accordingly dismissed the appellants claim. It is against this
view that the main argument of the appeal was directed. Counsel for the appellant contended (1) that if
frustration depended upon a term being implied in the contract then there is no room in the contract to imply
a term, (2) that the contract between the parties expressly provided what would happen in the events relied
upon by the respondents as amounting to frustration and in such circumstances the doctrine of frustration
should not be invoked, and (3) that the period of imprisonment was for a definite period and it cannot be said
that a situation arose to which no limit could be put. This contention is based on a submission that s 22 of
the Poor Relief Law, Cap 299 [J], embraces every situation that may arise between the appellant and the
respondents other than the death of the appellant and his resignation. I cannot agree with that contention.
Section 22 is as follows:
22. (1) Where any Parochial Board is of the opinion that poor relief is not being administered
properly or efficiently in any place or district, or by any poor relief officer, in the parish, the Parochial
Board may hold an investigation into the administration of such poor relief.
(2) If after such investigation the Parochial Board is of the opinion that any poor relief officer has
been negligent in the performance of his duties, or is unfit, incompetent, or incapable of discharging his
duties, then such Parochial Board may dismiss without notice or degrade any such officer, or may
make such other order in relation to the administration of poor relief in the parish as it may think fit:
Provided that where any poor relief officer is dismissed or degraded that officer shall have a right of
appeal to the Board of Supervision against such order. On such appeal the Board of Supervision may
make such order, which shall be final and conclusive, as it may think fit.
(3) Where the Board of Supervision has received any complaint in relation to the administration of
poor relief under this Law, or where the Secretary of the Board of Supervision is of the opinion that the
provisions of this Law are not being properly carried out, either in any particular place or district or by
any particular poor relief officer, the Secretary shall inform the Board of Supervision of such fact and
the Board of Supervision may thereupon order an investigation before such Board to be held in relation
to such matter. At such investigation it shall be the duty of the Secretary to place before the Board all
the evidence in relation to such matter as may be within the possession of such Secretary. On the
determination of such investigation the Board may dismiss without notice, or degrade, any poor relief
officer, or may make such other order as it may think fit.
(4) Pending the hearing of any investigation under subsections (1), (2) or (3) of this section, the
Parochial Board or the Board of Supervision, as the case may be, may suspend any poor relief officer.
(5) Any investigation under subsections (1), (2) or (3) of this section shall be of an informal nature
and the procedure therein may be determined by the Parochial Board or the Board of Supervision, as
the case may be, and unless in any particular case for special reasons the Parochial Board or the

Board of Supervision, as the case may be, otherwise orders, no person shall be represented by
counsel or solicitor at any such investigation.

515
This section in my view does no more than superimpose certain terms on the contract of service in
protection of an Inspector of Poor (the employee). There must still be a contract of service which requires
the employee to give service and the employer to pay for such service. The Law in s 21 not only recognises
this but in fact gives details of the duties of an Inspector of Poor and in s 20 provides for his emoluments.
The effect of ss 20, 21 and 22 in my view is to afford an Inspector of Poor certain safeguards when
questions concerning his dismissal arise in the course of the discharge of his duty. The Law recognises as
indeed it must the two fundamental terms of a contract of service, namely, service on the part of the
employee and payment for such service on the part of the employer. Around these two terms every contract
of service is based. That being so a breach of the term to render service must entitle any employer to
regard the contract as at an end. Or as it is put by the learned author of Batt On Master And Servant at p
60:
It is a fundamental principle of law that a person cannot both approbate and reprobate, that is
claim to take the benefit of a transaction or relation whilst at the same time refusing to perform the
obligations imposed upon him thereby, or, to put it another way wilful neglect or disobedience amounts
to a repudiation by the servant of his contract of service, since either amounts to acts or conduct of the
party which evince an intention no longer to be bound by the contract.
In the instant case the appellant misappropriated 559 10s of the respondents money, he admitted his
guilt and was sentenced to prison for nine months. There would seem to be acts or conduct which evince
an intention not to be bound by the contract as stated by Lord Coleridge CJ, in Freeth v Burr ((1874), LR 9
CP 208, 43 LJCP 91, 29 LT 773, 22 WR 370, 12 Digest (Repl) 379, 2970) ((1874), LR 9 CP at p 213). Apart
from the question of dishonesty is the fact that he was sentenced to nine months imprisonment. This
means that as a direct consequence of his conduct he was unable to give the service he had contracted to
give. In those circumstances, the respondents were entitled to consider the contract as at an end.
The question of repudiation was not argued in the court below but on counsel for the appellant being
asked if this court could consider it he agreed that there were facts to ground such an argument and that he
could not resist its consideration. And when invited to deal with it he confined himself to the provisions of s
22 of the Poor Relief Law, Cap 299 [J]. That section he contended would apply even if the Inspector of Poor
broke a fundamental term of the contract. There must be an investigation, he said, in spite of the fact that
the section requires no more than that the Board may hold an investigation when poor relief is not being
administered properly or efficiently. That argument would seem to see no distinction between no
administration at all and an administration that is not proper or efficient. With that argument of course I
cannot agree. As I see it s 22 is designed to give an Inspector of Poor some measure of protection against
his employers, it is not designed to protect an Inspector of Poor against himself and cannot be used to
require an investigation where the conduct of the Inspector of Poor makes it clear that the contract is at an
end.
I now address myself to the question of the costs of the appeal, and in doing so have in mind the fact
that the question of repudiation was not raised in the court below. But although that question was not raised
the facts were pleaded on which such an argument could have been raised. In those circumstances should
a successful respondent be deprived of any of his costs of the appeal? I think not. The appellant was
informed of the respondents case as it was disclosed in the pleadings and evidence and it cannot be said
that he suffered an injustice simply because an argument was not raised on one aspect of the facts.

516
The appeal therefore stands dismissed and I would award the costs of the appeal to the respondents.
ARCHER J. The argument of counsel for the appellant was founded entirely on the proposition that the
contract between the appellant and the respondents can only be terminated by the appellants dismissal by
the respondents and in accordance with the procedure prescribed by s 22 of the Poor Relief Law, Cap 299
[J]. This contention is quite baseless. The section points out the manner in which the Parochial Board must
proceed if it desires to terminate a contract by dismissal for any of the causes specified in the section but it
has no application where the contract has already come to an end. The appellants contract was terminated
by breach on his part. It was his own act which made it impossible for him to perform the duties which he
had undertaken and the Board treated the contract as at an end by appointing someone else to perform
those duties, temporarily at first, pending a permanent appointment, and later by filling the post. There was
therefore at the date of the appellants writ no subsisting contract in respect of which he could claim either
for arrears of salary or for a declaration.

The respondents contested the appellants claim in the court below on two grounds, namely, that his
dismissal by the Town Clerk had been ratified by the Council, and that the contract had been frustrated by
the appellants absence from duty. The trial judge found in their favour on the second ground but decided
against them on the first ground. I gained the distinct impression during the short discussion concerning the
extent of the respondents right to support the judgment on new grounds that counsel intended to rely on the
same grounds put forward in the court below. He was not, however, called upon to reply to the arguments of
counsel for the appellant because the court itself intimated the ground on which it was minded to disallow
the appeal. I felt some doubt as to the respondents entitlement to their full costs of the appeal in the
circumstances, but I have considered the matter further and I am no longer disposed to think that there is
sufficient ground for depriving them of any of their costs.
WYLIE J. The appellant, by his admitted dishonesty in handling his employers moneys, had broken a
fundamental condition of the contract amounting to repudiation, entitling the employers to treat the contract
as at an end. It is not necessary in these circumstances that an employer should dismiss an employee in
order to show that he treats the contract as at an end. The purported dismissal and the immediate filling of
the post (albeit on a temporary basis) shows that the respondents did, in fact, treat the contract as at an end.
Moreover, this intention was clearly shown to the appellant by the letter from the Acting Town Clerk of 31
May 1954, and the appellant took no action until his letter of 22 April 1955, enquiring as to the circumstances
of his dismissal. Nor did he offer his services at all during the interim period. The behaviour of both parties
during this period is, in my view, only consistent with the explanation that both parties treated the contract as
at an end, and, as I have said, the respondents were entitled in law to treat the contract as ended by
repudiation by reason of the appellants dishonesty.
The argument submitted on behalf of the appellant involves the proposition that this contract could be
brought to an end only by dismissal under the procedure prescribed in s 22 of the Poor Relief Law. In
answer to the court counsel had to concede that the contract might be brought to an end by the death of the
appellant or by his resignation. In my view, s 22 only prescribes a method of dismissal and cannot possibly
exclude termination by impossibility of performance or by repudiation, more especially repudiation on the
part of the appellant entitling the respondents to treat the contract as at an end.

517
I agree that the appeal should be dismissed and that the respondents should have their costs on the
appeal.
Appeal dismissed.

(1959) 1 WIR 518

Stewart v Inland Revenue Commissioner

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, LEWIS AND MARNAN JJ
3, 6, NOVEMBER 1959

Income Tax Assessment Objection Review Decision on the review communicated to the taxpayer
Effect of notification of the decision Sections 38 and 39 of the Income Tax Act, 1921 [B].
On 31 December 1954, PS was assessed for income tax. He objected to the assessment and, after much
correspondence and enquiry, on 23 October 1956, the Commissioner of Inland Revenue notified him of his
decision upon review. In the letter in which he so notified him was enclosed a form on the back of which it
was stated that a taxpayer may appeal to the Appeals Committee or to the Court of Common Pleas at his
election. This election is given to a taxpayer by an amending Act of 1956 and only applies to years of
assessment after 1955. The earlier Act, which applied to assessments up to the year 1955, provided for an
appeal to the Court of Common Pleas and to no other tribunal.
On 30 October 1956, PS wrote to the Commissioner asking him to review the assessment; the next day the
Commissioner replied stating that the notification related not to assessments but to a review of
assessments. Misled as he alleged by the information on the back of the form, PS had recourse to the
Appeals Committee. After adjournments, and negotiations for a settlement, in April 1958, the Appeals
Committee discovered that it had no jurisdiction in the matter. Thereupon P S asked the Commissioner to
consider the re-hearing of the case to which the Commissioner agreed and on 15 May 1958, the
Commissioner notified P S of his decision on the re-hearing of the case.

P S was dissatisfied with this decision and appealed to the Court of Common Pleas.
Held: the fact that the Commissioner made a misstatement to P S about how he is to exercise his right of
appeal cannot (in the absence of fraud which was not alleged) revive a right of appeal which is barred being
out of time.
Appeal dismissed.
Cases referred to
Robertson v Minister of Pensions [1948] 2 All ER 767, [1949] 1 KB 227, [1949] LJR 323, 64 TLR 526, 92 Sol
Jo 603, 2nd Digest Supp
Falmouth Boat Construction Co Ltd v Howell [1950] 1 All ER 538, [1950] 2 KB 16, 66 (pt 1) TLR 487, CA,
revsd on other grounds, Howell v Falmouth Boat Construction, Ltd, [1951] 2 All ER 278, [1951] AC 837,
[1951] 2 TLR 151, 95 Sol Jo 413, HL, 2nd Digest Supp
Appeal
Appeal by PS from the judgment of the Supreme Court of Barbados (Appellate DivisionFIELD, J) dated 2
February 1959.

518
Barrow (instructed by Yearwood and Boyce) for the appellant
Burton QC (instructed by Cottle Catford & Co) Attorney-General, for the respondent
HALLINAN CJ delivered the judgment of the court: This case concerns the assessment of the appellant to
income tax for the years of assessment 1950, 1952 and 1953. An assessment was made for the year 1950
under s 28 of the Income Tax Act, 1921 [B], and on 31 December 1954, assessments were made for the
years of assessment 1950, 1952 and 1953 presumably under s 44 of the Act of 1921. It should be noted
that the provisions of the Act regarding notice of assessment apply to an assessment under s 44; and that s
36, which deals with notice of assessment, also includes provision for review of assessments by the
Commissioner.
The appellant objected to the assessment of 31 December 1954, and after much correspondence and
enquiry, the Commissioner informed Mr Pile (who was the appellants accountant) of his decision upon
review. The next day the Commissioner communicated his decision in writing. Under s 39 of the Act of
1921 (before its amendment in 1956) the tax so determined became payable sixteen days after notification
but under s 38 the taxpayer could appeal to the Court of Common Pleas within fifteen days of such
notification. On 30 October the appellant wrote asking the Commissioner to review the assessments notified
orally on 22nd and in writing on 23rd; the next day the Commissioner replied that the notification related not
to assessments but to a review of assessments.
It is difficult to see how the appellant failed to appreciate that the Commissioner had in fact reviewed the
assessment of December 1954. His explanation is that he was misled by the forms on which the notification
was made. The forms (Exhibits A 1-3 admitted in the course of this appeal) were enclosed in the letter of 23
October 1956. At any rate after 31 October the appellant should have understood that the Commissioner
had notified him of his decision upon review. He had then fifteen days within which to appeal to the Court of
Common Pleas. The Act of 1921 had been amended by the Act of 1956 which provided for an appeal to the
Appeals Committee or to the Court of Common Pleas at the taxpayers election. This amendment only
applied to years of assessment after 1955. Unfortunately the forms, Exhibits A 1-3, were printed after the
amending Act of 1956 and contain on the back the information that the taxpayer had these two avenues of
appeal whereas the appellant in respect of the assessment made in December 1954, had only one way to
appeal, namely, to the Court of Common Pleas. Misled, as he alleged by this information, the appellant had
recourse to the Appeals Committee. After adjournments and negotiations for a settlement, at length in April
1958, the mistake was discovered: the Appeals Committee had no jurisdiction in the matter. At this stage I
had better quote from the agreed statement of facts: The Commissioner was asked by Mr Walcott (for the
appellant) to consider the re-hearing of the case to which he agreed, and on 15 May 1958, the
Commissioner notified the appellant of his decision on the re-hearing of the case.
The appellant was dissatisfied with this decision and appealed to the Court of Common Pleas where it
was held: that the assessments of December 1954, were properly made; that the review notified to the
appellant in October 1956, was final; that he had lost his right to appeal to the Court of Common Pleas,
being out of time; and that the decision of the Commissioner on 15 May 1958, was ultra vires the power of
the Commissioner under the Act of 1921.
For the appellant it has been submitted that the review of the assessment of December 1954, notified to
the appellant on 22 October and 23, 1956, was not final or intended by the Commissioner to be final. Our

attention has been directed to the Commissioners notes dated 22 October 1956, of an an interview with Mr
Pile and the Commissioners letter written the next day. I am unable to see anything in these documents to
suggest that the Commissioner

519
ever intended his decision notified in the interview and in the letter to be anything other than the final
exercise of his powers under s 36 of the Act of 1921. That both parties appeared before the Appeals
Committee indicates that the Commissioner had made a decision which was appealable. That the parties
continued to negotiate while the appeal was pending does not indicate that the Commissioners decision
was provisional: such negotiations are common and often result in a settlement later embodied in a court
order. That the Commissioner in April 1958, agreed (as the statement of admitted facts put it) to re-hear the
case does not establish that the Commissioner had never made a decision upon review: the Commissioner
obviously felt that the appellant (possibly through the misinformation in the forms Exhibits A 1-3) had lost his
right of appeal through appealing to the wrong tribunal, and out of sympathy for the appellant attempted to
exercise powers which he clearly did not possess.
Much play has been made for the appellant about the communication of the decision of 22 October
1956, being misleading. After the Commissioners letter of 31 October it was abundantly clear that the
Commissioner had given and communicated his decision on review. Nothing then was misleading except
the statement on the forms A 1-3 as to the avenues of appeal. In my view, the fact that the Commissioner
makes a misstatement to the appellant about how he is to exercise his right of appeal cannot (in the
absence of fraud, which is not alleged) revive a right of appeal which is barred being out of time. The
provision of s 38 of the Act of 1921 (prescribing the time within which an appeal may be brought) cannot be
dispensed with because an officer of the Crown has innocently given wrong advice. Even if the right of
appeal against the review of 1956 was alive, I am unable to see how this would enable the appellant to
succeed in an appeal against the re-hearing of the case in 1958.
It has not been easy to understand precisely the submission of counsel for the appellant that the Crown
is estopped from denying that the review of 1956 was not final. It seems to me that the Commissioner never
by word or conduct suggested that his decision on review was other than final until he consented to re-hear
the case in 1958, and by that date the review of 1956 was final and conclusive for the appellant was long
since out of time to appeal. Counsel for the appellant has relied on a principle of Denning J (as he then
was) in Robertson v Minister of Pensions ([1948] 2 All ER 767, [1949] 1 KB 227, [1949] LJR 323, 64 TLR
526, 92 Sol Jo 603, 2nd Digest Supp), namely that whenever government officers in their dealings with a
subject take on themselves to assume authority in a matter with which he is concerned the subject is entitled
to rely on their having the authority which they have assumed. Applying this principle to the facts of the
present case, I take it that the only possible authority which the Commissioner assumed and which he did
not possess was the authority to re-hear the case. In doing so he was clearly acting ultra vires his power
under the Act of 1921. In Falmouth Boat Construction Co, Ltd v Howell ([1950] 1 All ER 538, [1950] 2 KB
16, 66 (pt 1) TLR 487, CA, revsd on other grounds, Howell v Falmouth Boat Construction, Ltd, [1951] 2 All
ER 278, [1951] AC 837, [1951] 2 TLR 151, 95 Sol Jo 413, HL, 2nd Digest Supp) Denning LJ (as he then
was), in the Court of Appeal applied the principle he formulated in Robertsons v Minister of Pensions, case
([1948] 2 All ER 767, [1949] 1 KB 227, [1949] LJR 323, 64 TLR 526, 92 Sol Jo 603, 2nd Digest Supp) so as
to excuse a firm of ship repairers from compliance with a statutory order. This application of the principle
was emphatically rejected when the Falmouth Boat Construction Co Ltd v Howell, case ([1950] 1 All ER 538,
[1950] 2 KB 16, 66 (pt 1) TLR 487, CA, revsd on other grounds, Howell v Falmouth Boat Construction, Ltd,
[1951] 2 All ER 278, [1951] AC 837, [1951] 2 TLR 151, 95 Sol Jo 413, HL, 2nd Digest Supp) went to the
House of Lords. Lord Simonds ([1951] AC at p 845) first cited the principle as stated by Denning LJ:
When government officers, in their dealings with a subject, take on themselves to assume authority
in a matter with which he is concerned, the subject is entitled to rely on their having the authority which
they assume. He does not know and cannot be expected to know the limits of their authority, and he
ought not to suffer if they exceed it. That was the principle which I applied in Robertson v Minister of
Pensions ([1948] 2 All ER 767, [1949] 1 KB 227, [1949] LJR 323, 64 TLR 526, 92 Sol Jo 603, 2nd
Digest Supp), and it is applicable in this case also.
Lord Simonds having stated the principle then continued (ibid, at p 845):

520
My Lords, I know of no such principle in our law nor was any authority for it cited. The illegality of
an act is the same whether or not the actor has been misled by an assumption of authority on the part
of a government officer however high or low in the hierarchy. I do not doubt that in criminal
proceedings it would be a material factor that the actor has been misled if knowledge was a necessary
element of the offence, and in any case it would have a bearing on the sentence to be imposed. But
that is not the question. The question is whether the character of an act done in face of a statutory

prohibition is affected by the fact that it has been induced by a misleading assumption of authority. In
my opinion the answer is clearly No. Such an answer may make more difficult the task of the citizen
who is anxious to walk in the narrow way, but that does not justify a different answer being given.
It seems to me that in the present case, the appellant is relying on the principle enunciated by Denning
LJ, to justify an exercise of powers by the Commissioner in conflict with the provision of the Act of 1921.
This, having regard to the decision in the House of Lords to which I have referred, he cannot do.
For the reasons already given, I consider that this appeal should be dismissed with costs.
Appeal dismissed.

(1959) 1 WIR 521

Williams And Another v The Attorney-General

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, LEWIS AND MARNAN JJ
4, 5, 6, 13 NOVEMBER 1959

Customs duty Payment under protest Whether a reference to the Governor-in-Executive Committee
under s 165 of the Trade Act, 1910 [B] will oust the jurisdiction of the courts.
RW and JW claimed that certain trailers imported by them were exempt from customs duty. The Comptroller
of Customs, on the other hand, asserted that the trailers were dutiable. As a means of obtaining the trailers
RW and JW paid the duty demanded by the Comptroller but reserved their right to litigate the matter in
court, as appropriate, should they find this necessary. At the same time they requested that the dispute
should be referred to the Governor-in-Executive Committee. Section 165 of the Trade Act, 1910 [B],
provides, if any dispute shall arise as to the proper amount of money payable in respect of duty on goods
imported . . . the person from whom such duty . . . is demanded shall pay the same but within one month
after such payment refer the question in dispute to the Governor-in-Executive Committee who shall have
power to determine such question . . ..
Held: that s 165 gives no right to RW and JW but rather imposes an obligation upon them to pay money
which they claim they are not liable to pay in order to obtain delivery of their goods from the custody of the
Comptroller. While it provides an inexpensive and expeditious method of obtaining a decision in cases
where a dispute has arisen between the Comptroller and an importer

521
it does not either expressly or by implication deprive the importer of the right which he at all times has to
apply to the courts for a declaration on the question whether or not goods are liable to duty.
Appeal allowed.
Cases referred to
Barraclough v Brown [1897] AC 615, 66 LJQB 672, 76 LT 797, 62 JP 275, 13 TLR 527, 8 Asp MLC 290, 2
Com Cas 249, HL, affg (1896), 65 LJQB 333, CA, 16 Digest 115, 147
Pyx Granite Co Ltd v Ministry of Housing and Local Government [1959] 3 All ER 1, revsg, [1958] 1 All ER
625, [1958] 1 QB 554, 102 Sol Jo 174, 56 LGR 171, CA, 3rd Digest Supp
Appeal
Appeal from the judgment of the Supreme Court of Barbados (Trial DivisionHanschell J) dated 19 May
1959, dismissing the claim. The facts appear in the judgment of Lewis J.
Hanschell (instructed by Cottle Catford & Co) for the appllants
Burton QC Attorney-General for the respondent.
LEWIS J. The appellants claimed that certain sugar-cane trailers imported by them for use in the sugar
industry were exempt from duty under the provisions of the First and Second Schedules to the Customs
Tariff Act, 1921 [B], as amended by the Customs Tariff (Amendment) Act, 1953 [B]. The Comptroller of

Customs alleged that the trailers were dutiable and after some correspondence the appellants agreed to pay
in the disputed amount of duty reserving, however, their right to litigate the matter in the court, as
appropriate, should they find this necessary. At the same time they requested that the dispute should be
referred to the Governor-in-Executive Committee as provided by s 165 of the Trade Act, 1910 [B].
The trial judge found upon review of the correspondence that the payment was made, not merely as a
deposit, but as duty under the terms of s 165, and I am of opinion that this finding was correct. Duty was
paid on 2 February 1958, and the reference accordingly made to the Governor-in-Executive Committee.
The appellants enquired what procedure there was for presenting their case before the Governor-inExecutive Committee and were informed that it was not the practice to permit representation personally or
by counsel but that they might submit a memorandum of their grounds of appeal. On 5 March the appellants
were informed that the matter was under consideration by the Cabinet, and on 22 March they were further
informed that Government, being advised that the goods are dutiable, is unable to repay the amount paid
as duty and they were asked whether they still wished the appeal to the Governor-in-Executive Committee
to proceed. The Governor-in-Executive Committee is a body which comprises, inter alia, the AttorneyGeneral and all the members of the Cabinet, so that it appears that a decision not to repay which had
already been taken upon consideration by certain members of the Governor-in-Executive Committee was to
be reviewed by the full Committee. The appellants then filed their bill of complaint claiming a declaration
that the trailers were exempt from duty, that they were entitled to the amount of duty paid in, and for an order
for refund to them of the amount so paid.
While the suit was pending, another trailer was imported and the deposit paid under similar
circumstances and the bill of complaint was accordingly amended to include a claim in respect of this trailer.
Section 11 of the Customs Tariff Act, 1921 [B], is as follows:
The duties imposed by this Act shall be ascertained, raised, levied, collected, paid, recovered and
applied under the Trade Act, 1910, or any other Act which may now or hereafter be in force having
reference to the trade or revenue of this Colony.

522
Section 165 of the Trade Act, 1910 [B], states:
If any dispute shall arise as to the proper amount of money payable in respect of duty on goods
imported, tonnage dues, harbour police or Careenage fees, or in respect of any fee or sum of money
payable under the provisions of the Acts of this Island relating to trade and navigation, the person from
whom such duty, dues, fees or sums of money is demanded shall pay the same, but may within one
month after such payment refer the question in dispute to the Governor-in-Executive Committee who
shall have power to determine such question, and by order on the Treasurer refund to such person any
amount that may have been paid in excess of what should have been paid.
The Attorney-General has taken a preliminary objection that s 165 of the Trade Act, 1910 [B], applies to
all disputes concerning the payment of duty and requires an importer in case of such dispute to pay the
disputed amount, with the right, if he so wishes, to refer the matter for determination to the Governor-inExecutive Committee, and that this having been done the effect of s 165 is to oust the jurisdiction of the
courts, since the Legislature has expressly constituted the Governor-in-Executive Committee the appropriate
tribunal for deciding such disputes. He further contended before us that even if the courts had power to
determine the dispute about the liability to duty, yet in this case the appellants had elected to have the
matter referred to the Governor-in-Executive Committee and having once done so could no longer bring the
matter before the courts for decision.
For the appellants it was contended that s 165 did not apply to the question of liability to duty, which
was a matter to be determined merely by construction of the Customs Tariff Act, and that s 165 was
applicable merely to cases where liability being admitted the amount of duty payable was under dispute; and
that even if s 165 applied to the question of liability it did not operate to oust the jurisdiction of the court. The
trial judge held that s 165 applied to the question of liability as well as to the question of quantum, but that its
effect was to oust the jurisdiction of the court. He said:
Where a person has paid in pursuance of this provision he cannot recover the money in a court of
law or equity, because it is money paid under express statutory provision. Nor can he sue for it as
money had and received to his use because it cannot be deemed an involuntary payment, even
though paid under protest, having been paid by compulsion of legal process.
His view was that s 165 gave a right to recover the duty paid under its provisions, that this was a right which
the appellants had only by virtue of that section, that the section at the same time gave a remedy by way of
reference to the Governor-in-Executive Committee, and that since the right was created and the remedy

provided in one breath the appellants would have no other remedy than that provided by the section. He
therefore held that the principle laid down in Barraclough v Brown ([1897] AC 615, 66 LJQB 672, 76 LT 797,
62 JP 275, 13 TLR 527, 8 Asp MLC 290, 2 Com Cas 249, HL, affg (1896), 65 LJQB 333, CA, 16 Digest 115,
147) applied to this case.
In Barraclough v Brown ([1897] AC 615, 66 LJQB 672, 76 LT 797, 62 JP 275, 13 TLR 527, 8 Asp MLC
290, 2 Com Cas 249, HL, affg (1896), 65 LJQB 333, CA, 16 Digest 115, 147) the court held, upon the
construction of s 56 of the Harbours, Docks and Piers Clauses Act, 1847 [UK], that the undertakers of a
certain navigation who had incurred expenses in removing a sunken vessel and who were empowered by
that section to recover the expenses from the owner of the vessel in a court of summary jurisdiction were not
entitled to sue in the High Court the persons who had been owners at the time of the sinking but had ceased
to be such before the expenses were incurred; nor could the undertakers come to the High Court for a
declaration that on a true interpretation of the statute, they had a right to recover such expenses in the court
of summary jurisdiction. Lord Herschell said ([1897] AC at p 619):

523
Unwilling as I am to determine the appeal otherwise than on the merits of the case, I feel bound to
hold that it was not competent for the appellant to recover the expenses, even if the respondents were
liable for them, by action in the High Court. The respondents were under no liability to pay these
expenses at common law. The liability, if it exists, is created by the enactment I have quoted. No
words are to be found in that enactment constituting the expenses incurred a debt due from the
owners of the vessel. The only right conferred is to recover such expenses from the owner of such
vessel in a court of summary jurisdiction. I do not think the appellant can claim to recover by virtue of
the statute, and at the same time insist upon doing so by means other than those prescribed by the
statute which alone confers the right.
On the question whether a claim for a declaration could be maintained he said (ibid, at p 620):
It might be enough to say that no such case was made by the appellants claim. But, apart from
this, I think it would be very mischievous to hold that when a party is compelled by statute to resort to
an inferior court he can come first to the High Court to have his right to recoverthe very matter
relegated to the inferior courtdetermined. Such a proposition was not supported by authority, and is, I
think, unsound in principle.
In my opinion the present case is quite different from that of Barraclough v Brown ([1897] AC 615, 66
LJQB 672, 76 LT 797, 62 JP 275, 13 TLR 527, 8 Asp MLC 290, 2 Com Cas 249, HL, affg (1896), 65 LJQB
333, CA, 16 Digest 115, 147). Section 165 gives no right to the appellants but rather imposes an obligation
upon them to pay money which they claim they are not liable to pay in order to obtain delivery of their goods
from the custody of the Comptroller. The appellants are not here seeking to enforce an obligation against
some other person under a statute which restricts the manner in which they may enforce it and provides a
particular remedy for so doing. While s 165 provides an inexpensive and expeditious method of obtaining a
decision in cases where a dispute has arisen between the Comptroller and an importer, it does not either
expressly or by implication deprive the importer of the right which he at all times has to apply to the courts
for a declaration on the question whether or not goods are liable to duty. The circumstances in which the
rule in Barraclough v Brown ([1897] AC 615, 66 LJQB 672, 76 LT 797, 62 JP 275, 13 TLR 527, 8 Asp MLC
290, 2 Com Cas 249, HL, affg (1896), 65 LJQB 333, CA, 16 Digest 115, 147) is applicable are considered
and the principle explained in the case of Pyx Granite Co, Ltd v Ministry of Housing and Local government
([1959] 3 All ER 1, revsg, [1958] 1 All ER 625, [1958] 1 QB 554, 102 Sol Jo 174, 56 LGR 171, CA, 3rd Digest
Supp). Lord Jenkins has this to say ([1959] 3 All ER at p 16):
The principle is wholly opposite in cases comparable to Barraclough v Brown ([1897] AC 615, 66
LJQB 672, 76 LT 797, 62 JP 275, 13 TLR 527, 8 Asp MLC 290, 2 Com Cas 249, HL, affg (1896), 65
LJQB 333, CA, 16 Digest 115, 147). If A has a right founded entirely on a particular statute to recover
a sum of money from B, and the statute goes on to provide that the sum in question may be recovered
in proceedings of a particular kind, then it is wholly reasonable to impute to the legislature an intention
that the sum in question, recoverable solely by virtue of the statute, should be recoverable in
proceedings of the kind provided by the statute and not otherwise. The statute puts on B for the
benefit of A a liability to which B could not otherwise be subjected, and at the same time prescribes a
particular form of proceedings in which it may be enforced. No doubt B must then submit to being
amerced to the extent and in the manner provided by the statute. But the incidents of the burden cast
on B by the terms of the statute are not to be changed from or made more onerous than those which
the statute provides, as they would be if A was at liberty to recover the sum in question, or seek a
declaration of his right to recover it, in any other form of proceedings to which he might choose to have

recourse. As it seems to me, the purpose underlying the principle is the protection of the person
against whom the statutory right is asserted from oppression on the part of the person asserting it.

524
In my view there is nothing in the wording of s 165 which compels this court to hold that the appellants
are deprived of their ordinary remedy before the courts, and I am of opinion that the trial judge erred in
holding that the court had no jurisdiction to make the declaration claimed by the appellants.
With regard to the submission that the appellants elected between their remedy under s 165 of the
Trade Act [B] and their ordinary remedy at law I am of opinion that the facts of this case do not indicate such
an election. The appellants were in urgent need of the sugar-cane trailers. They wished to avoid a
protracted dispute. Their suggestion that the matter be referred to arbitration was not acceptable to the
Comptroller. Their contention was that the matter was one for determination by the court. Having regard,
however, to the delay which this would cause they decided to move under s 165, at the same time expressly
reserving their right to litigate the matter if it became necessary so to do. After six weeks it became
apparent to them that this course was not only not proving expeditious but that their case would be heard by
a tribunal which included persons who had apparently reached an adverse decision on the matter. In these
circumstances I am unable to hold that it was ever the intention of the appellants to abandon their right to
recourse to the courts or that their decision to have the matter referred to the Governor-in-Executive
Committee precludes them from now proceeding at law.
Even if a conclusion that the appellants had made an election were warranted by the facts there is, in
my view, nothing to prevent a person who has two remedies from proceeding with both remedies at the
same time. It would then be for the party affected to apply to the court for a stay of proceedings in one of
the suits. The Attorney-General was asked whether he could produce any authority for the proposition
which he put forward on this point and stated that he was unable to do so. No application for a stay was
made in this action, and in my view the appellants are not precluded from seeking the declaration for which
they have asked.
Having regard to the opinion which I have formed on the question of exclusion of the courts jurisdiction
it is not necessary for the further question, whether a dispute under s 165 includes a dispute as to liability
to duty, to be determined. I would only make two observations. First, reference to s 30 of the Customs
Consolidation Act, 1876 [UK], appears to support the view that s 165 is wide enough to include the case
where only liability to duty is in question. In s 30 the words the proper rate of duty payable on any goods
occur and the courts are directed to ascertain whether any and what duty is payable on such goods.
Secondly, if s 165 does not apply to a case of liability to duty this curious situation is found, that an importer
who claims that no duty is payable on such goods is in a worse position than one who claims that one cent
was payable, the former being deprived of the inexpensive and expeditious remedy which the law has
provided. I express, however, no final opinion on this point.
I would allow the appeal. The judgment of the court below should be set aside. The court below has
jurisdiction to make a declaration on the question of liability to duty or otherwise of the trailers in question
and this suit must go back to that court to assume such jurisdiction. Should the court below, upon re-hearing
this case, determine that the appellant was not liable to pay the duty which he has paid, in my view the
Crown has ample authority in law to make a refund. The respondent should pay the costs of this appeal and
the costs already incurred in the court below.
HALLINAN CJ. I agree with the order which Lewis J, considers should be made in this case and with his
reasons and conclusions on the issue as to whether the provisions of s 165 confer an exclusive jurisdiction
on the Governor-in-Executive Committee. It is not, therefore, necessary to determine the

525
question whether disputes under s 165 include disputes relating to liability to duty and I express no opinion
on this matter.
MARNAN J. I agree that this appeal should be allowed and with the order proposed by my Lords. I only
find it necessary to add that if it ever falls to be decided whether disputes under s 165 of the Trade Act [B]
include disputes as to liability to duty only, that question will, in my opinion, ultimately depend upon the
meaning to be ascribed to the words of that particular section. Lewis J, has made two observations which
tend to favour one of the possible constructions. I think that the words of the section, as it stands, provide
strong grounds for argument in the opposite sense. I therefore feel it right to emphasise that which I
understand to be the unanimous view of this court, namely, that the question should be regarded as entirely
open.
Appeal allowed.

(1959) 1 WIR 526

Grannum v Sherwood And Others

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
RENNIE, ARCHER AND WYLIE JJ
4, 5, 9 NOVEMBER 1959

Tort False imprisonment Police Absence of malice Honest belief that he was carrying out a public
duty as a police officer Protection from liability provided by s 10 (1) of the Police Force Law [Cayman Is].
HG was temporarily employed to drive the fire engine at the airport at George Town in the Cayman Islands.
ES was Chief of Police and Chief of the Fire Services of those Islands. On the morning of 25 March 1959,
HG was not about the airport when a plane landed and for this conduct the Commissioner decided that he
should be dismissed. Later that day and shortly before two planes were expected to land on the airport, ES,
accompanied by two constables, went to the airport where he saw HG and asked him for the ignition key of
the fire engine. HG refused to hand over the key to ES and was about to leave the airport on a bicycle when
ES ordered one of the constables to prevent him from leaving the airport with the key. HG persisted in his
refusal to hand over the key and struggled and shouted to persons around. He was held and the key taken
from him. He was also arrested and charged with obstructing the police in the execution of their duty.
Held: The facts established that ES was not actuated by malice and that he acted bona fide in the belief that
he was carrying out a public duty as a police officer. In those circumstances, s 10 (1) of the Police Force
Law [Cayman Is] affords him protection from liability.
Appeal dismissed.
Case referred to
Phillips v Naylor (1859), 4 H & N 565, 28 LJEx 225, 33 LTOS 167, 23 JP 660, 5 JurNS 966, 7 WR 504, 157
ER 962, Ex Ch, 33 Digest 485, 224
Appeal
Appeal by the plaintiff from the judgment of the Grand Court of the Cayman Islands (Trial DivisionAstwood
J) dated 10 June 1959, dismissing the action. The facts appear in the judgment of Archer J.

526
Rattray (instructed by W A McLaughlin) for the appellant
Brandon (instructed by Crown Solicitor) for the respondent
ARCHER J. In the action out of which this appeal arises, the appellant sued the respondents as members
of the Police Force of the Cayman Islands for falsely imprisoning him on 25 March 1959. The alleged false
imprisonment took place in these circumstances: the appellant, who was employed by the Cayman Islands
Corporation as the fireman in charge of the fire engine for use at an airfield, refused to deliver up the switch
key to the fire engine on the demand of the respondent, Sherwood, and, on his attempting to leave the
airfield with it, he was, on the instructions of the respondent, Sherwood, prevented from doing so by the
respondent, Nixon, who held him and felt his right pocket. The respondent, Connolly, then searched the
appellant and removed the key, after which he was arrested for obstructing the police in the execution of
their duties and taken to a police station where he remained for two hours until he was released on bail.
The respondent, Sherwood, said in evidence that in 25 March 1959, he was Chief of Police, Chief of the
Fire Brigade, Justice of the Peace and Security Officer. There was much discussion in the court below and
in this court as to the source of his appointment as Chief of the Fire Brigade, and one of the grounds of
appeal is that the trial judge wrongly disallowed production of the minutes of the Cayman Islands
Corporation which were relevant to this issue. I do not think that a decision on this appeal depends on the
question whether or not the respondent, Sherwood, was lawfully appointed Chief of the Fire Brigade. He
was performing the duties of Chief of the Brigade and what has to be determined is not whether a lawfully
appointed Chief of the Fire Brigade could justify what he did, but whether as a member of the Cayman
Islands Police Force he has a statutory defence.
Section 10 (1) of the Police Force Law [CIs] provides as follows:
Every action against a member of the Police Force for any act done by him in the execution of his
office shall be in the nature of an action on the case as for a tort; and in the particulars of claim it shall

be expressly alleged that such act was done maliciously and without reasonable or probable cause,
and if at the trial of any such action, upon the general issue being pleaded, the plaintiff shall fail to
prove such allegation, he shall be nonsuited or a verdict shall be given for the defendant.
The trial judge found that the respondent, Sherwood, was not actuated by malice and that he thought
that he was performing a police duty when he prevented the appellant from leaving the airfield with the key
to the fire engine. He also found that the respondent, Sherwood, had every reason to feel that he was then
acting in the capacity of a member of the Police Force. The sole question for decision is whether or not
there was evidence on which the judge could so have found, and in my view, there was no such evidence.
The state of mind of the respondent, Sherwood, at the time of the incident is the relevant consideration and
it is unreasonable to expect that acting on the spur of the moment in a situation of emergency, as he must
have done, he would have addressed his mind to the question whether the capacity in which he was then
acting was or was not more properly that of Chief of the Fire Brigade. It has been strenuously contended by
counsel for the respondents that Sherwood was carrying out a police duty by virtue of s 5 of the Police Force
Law [CIs] when he detained the appellant and had him arrested. It has been equally forcefully argued by
counsel for the appellant that he was not. I do not find it necessary to discuss the scope of the section, for
even if it could be supposed that Sherwood considered the alternatives and decided that as a matter of law
what he was about to do fell within his duty as a member of the Police Force

527
when it did not, he would nevertheless be entitled to the protection afforded by s 10 (1) of the Law,
provided he did not act maliciously.
Counsel for the appellant submitted that malice was to be inferred from what he described as clashes
between Sherwood and the appellant. Such differences as arose were mainly due to the appellants refusal
to acknowledge Sherwoods authority and they formed part of the evidence which the trial judge must have
taken into account when determining the issue of malice. He has acquitted Sherwood of mala fides and has
found that he acted bona fide in the belief that he was carrying out a public duty as a police officer. In my
judgment, the action against Sherwood fails.
The other respondents acted in obedience to Sherwoods orders. They, too, are members of the Police
Force and there is no evidence that they acted maliciously. The action against them must also fail and
accordingly I agree that the appeal must be dismissed with costs.
RENNIE J. I concur.
WYLIE J. This is an appeal from a decision of the judge of the Grand Court of the Cayman Islands,
dismissing a claim brought by the appellant against the respondents for damages for false imprisonment.
The incident out of which the claim arose occurred on 25 March 1959. At that time the appellant, who
resides in George Town in the Cayman Islands, was employed on a temporary basis by the Cayman Islands
Corporation as a fireman. The fire unit was stationed at the airport and was to be in a state of readiness
when aircraft were using the airport. The first-named respondent is Chief of Police at Cayman Islands and
the other respondents are also members of the Cayman Islands Police Force. On 17 January or
thereabouts, the Commissioner of the Cayman Islands, who is also Chairman of the Cayman Islands
Corporation, told the appellant (following an incident between the appellant and the first-named respondent
concerning a fire about three-quarters of a mile away from the airport) that he was to take orders from (inter
alia) the Chief of Police, the first-named respondent. On 12 March 1959, the Chief of Police was appointed
Chief of Fire Services by the Corporation. On the morning of 25 March at practice, the Chief of Police took
the appellant to task in regard to the state of the fire engine. According to the respondent, the appellant left
the fire engine, although a plane was due, and was not about when the plane landed. He appeared to the
respondent to be out of control and indignant. The respondent reported the matter to the Commissioner
who agreed that the appellant should be relieved of his post as driver of the fire engine, and instructed the
Superintendent of Works to find a new driver. The Commissioner assumed that either the Chief of Police or
the Superintendent of Works would inform the appellant, as the latter had been instructed to take orders
from these officials.
That evening, two planes were due and the first-named respondent went to the airport with the other
two respondents. The appellant was there and also another person whom the respondent assumed to be
the new driver. The respondent asked the appellant for the key to the fire engine. The appellant refused to
hand it over and said he was going to George Town to hand the key to the person who had given it to him.
The first-named respondent states that he pointed out two planes were due and on no account was the
appellant to hand the key to anyone outside the airport because of the possible danger to passengers if the
fire engine was immobilised. He stated that the appellant obtained his bicycle and appeared adamant, trying
to force his way past the respondent. The respondent then instructed the respondent, Nixon, that the
appellant was not to be allowed to leave the airport with the key and instructed the respondent, Connolly, to

get the key. The appellant persisted in his refusal, shouted to people around and struggled so that it took
two men to hold him.

528
The key was obtained and the first-named respondent ordered the appellant to be arrested for obstructing
the police in the execution of their duties. He was arrested, taken to a police station and charged and
released on bail in about two hours. He was acquitted of the charge on 3 April 1959.
The appellant stated in his evidence that the respondent told him he was fired and demanded the
keys. The appellant admitted that he had the key and that he made three or four attempts to pass the
respondent in order to take the key away to give it to someone else.
The following provisions of the Police Force Law [CIs] are relevant:
S 3.It shall be the duty of all members of the Police Force to preserve the Peace, to detect crime,
apprehend or summon before a Justice of the Peace persons found committing any offence, or whom
they may reasonably suspect of having committed any offence; to serve and execute all summonses,
warrants, subpoenas, notices and other processes issued from any Court, or by the Judge or any
Justice of the Peace; to perform all the duties of Revenue and Customs Officers, to act as Officers and
Wardens of the Prison or Prisons when required; to act as Officers of the Post Office and also to
perform such other duties as they may be required from time to time by the Commissioner or under
any Law, Rule, or Regulation.
S 6 (1).It shall be lawful for any member of the Police Force without warrant to apprehend any
person found committing any offence punishable upon Indictment of summary conviction, and to take
him forthwith before a Justice of the Peace, who shall enquire into the circumstances of the alleged
offence, and either commit the offender to the nearest prison or lock-up to be hereafter dealt with
according to Law, or take bail for his appearance before a Justice of the Peace to be dealt with
according to Law.
S 10 (1).Every action against a Member of the Police Force for any act done by him in the
execution of his office, shall be in the nature of an action on the case as for a tort; and in the particulars
of claim it shall be expressly alleged that such act was done maliciously and without reasonable, or
probable cause, and if at the trial of any such action, upon the general issue being pleaded, the
Plaintiff shall fail to prove such allegation, he shall be nonsuited or a verdict shall be given for the
Defendant.
The appellant alleged in his statement of claim that the respondents wee members of the Cayman
Islands Constabulary and caused him to be arrested on a charge of obstructing the first-named respondent
in the execution of his duty. It was also alleged that the respondents acted maliciously and without
reasonable or probable cause. The claim therefore appeared to be based on the assumption that the
respondents were acting in the execution of their offices as members of the police force.
In his reasons for judgment, the trial judge stated that he was of the view that the first-named
respondent was not in fact performing a police duty when he demanded the key, but he considered that the
protection afforded by s 10 (1) of the Police Force Law extended to acts purported to be done by members
of the police force in the execution of their office. The trial judge was not satisfied that the appellant had
established that the respondents in arresting the appellant had acted maliciously or without reasonable or
probable cause. There is no doubt that the trial judge was quite justified in taking this view and, in my
opinion, there could be no question of an appellate court disturbing this finding of fact in the state of the
evidence.
The only question for consideration is whether the first-named respondent is entitled to claim the
protection of s 10 (1) in the circumstances of this case. The trial judge found that this respondent was not in
fact performing a police duty when he requested the appellant to give him the key, but that the respon-

529
dent had every reason to feel that he was in fact exercising a police duty when he was obstructed by
the appellant. There was ample evidence on which the judge could so find and which could establish that
the respondent did in fact consider he was exercising a police duty. There was evidence from the
Commissioner that about 17 January he instructed the Chief of Police that he was in charge of the fire
fighting equipment at the airport and that at about the same time he directed the appellant to take orders
from the Chief of Police. The Chief of Police, therefore, had reasonable grounds for supposing that he was
exercising a police duty when he was obstructed, whether or not the Commissioner had been authorised by
the Corporation to give these instructions.
More especially is this so in the light of the concluding words of s 3 of the Police Force Law [CIs]. For I
do not agree with the view of the trial judge that the words such other duties are applicable only to a duty
which is normally the duty of the police. Several kinds of duties have been referred to in the section, some
of which are not normally the duty of the police, and it would be contrary to the ordinary rules of construction
to give so restricted a meaning to these words in the context in which they occur. Nor do I agree that a

direction by the Commissioner under that section would be a regulation having legislative effect which would
need to be published in accordance with s 27 of the Interpretation Law [J].
Even if my interpretation of s 3 is not correct, the position is that the first-named respondent was aware
of facts which, on this view of the law, would cause him reasonably to suspect the commission of an offence.
I consider that the reasoning in the judgment in Phillips v Naylor ((1859), 4 H & N 565, 28 LJEx 225, 33
LTOS 167, 23 JP 660, 5 JurNS 966, 7 WR 504, 157 ER 962, Ex Ch, 33 Digest 485, 224) is applicable in
deciding whether a member of the police force might reasonably suspect the commission of an offence
when there is doubt as to the state of the Law. That was apparently a case of malicious prosecution and it
was held that there was no want of reasonable and probable cause merely because the prosecutor had
taken a mistaken view of the law where a difficult question of law was involved. Equally, I consider that it
cannot be contended that a member of the police force is not acting reasonably in suspecting the
commission of an offence merely because it might transpire that he took a wrong view of a difficult question
of law.
In my view, therefore, whichever is the correct view of the concluding words of s 3 of the Police Force
Law [CIs], the first-named respondent was in fact exercising a duty imposed upon him by s 3 in arresting the
appellant after he was obstructed. It is obvious that the circumstances justified arrest, as opposed to the
alternative of summons. Thus all the respondents are entitled to the protection of s 10 (1). The appellant
having failed to satisfy the trial judge on the issues of malice and reasonable or probable cause, it follows
that the decision of the court below is correct.
The appellant also put forward as a ground of appeal that the minutes of the meeting of the Cayman
Islands Corporation on 12 March 1959, were wrongly held to be inadmissible. In spite of this ruling the
appellant was permitted to obtain secondary evidence of the contents of the minutes in cross-examination of
the Commissioner. I agree that the minutes relating to the appointment of Chief of the Fire Services could
not be excluded on the ground that they were private documents. However, even if production of the
minutes themselves had, notwithstanding the Commissioners evidence, established that there had been no
formal ratification of the action of the Commissioner by the Corporation, this would not affect the finding that
the Chief of Police might reasonably consider he was exercising a police duty, for, in my view, that finding is
to be based on instructions from the Commissioner, not from the Corporation, and could not be affected by
their failure to ratify. Consequently, the exclusion of this evidence has not led to any miscarriage of justice.

530
I agree that this appeal should be dismissed with costs to the respondents.
Appeal dismissed.

(1959) 1 WIR 531

Elwin v Gabriel And Another

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CA, LEWIS AND MARNAN JJ
10, 11 NOVEMBER 1959

Contract Master and servant Contract for an indefinite period Whether s 4 of the Statute of Frauds [U
K] requires such a contract to be in writing.
On 8 April 1956, SE was engaged to serve JG and AG as a clerk under a parol agreement. His
remuneration was $160 a month; $1,000 on completion of a years service and a commission. On 4 April
1957, he was summarily dismissed.
Held: that the contract was for an indefinite period and did not come within the provisions of s 4 of the
Statute of Frauds [U K].
Appeal allowed.
Case referred to
Souch v Strawbridge (1846), 2 CB 808, 15 LJCP 170, 10 Jur 357, 135 ER 1161, sub nom Touch v
Strawbridge, 7 LTOS 64, 12 Digest (Repl) 135, 844
Appeal

Appeal by SE from the judgment of the Supreme Court of the Windward Islands and Leeward Islands (Trial
DivisionTaylor J) dated 28 July 1958, dismissing his claim. The facts appear in the judgment of Hallinan
CJ.
Dupigny (instructed by Dupigny) for the appellant
Lockhart and James (instructed by James & Rigsby) for the respondents
HALLINAN CJ. In this case the plaintiff-appellant, in his statement of claim, alleged that he had been
engaged as a clerk of the defendants-respondents on contract at a salary of $160 a month, that he was to
receive one thousand dollars on the completion of one years service, and that he was entitled to certain
commission. He was summarily dismissed from the service of the respondents on 4 April 1957, after being
in their employment from 8 April 1956. The learned judge, having heard the evidence, decided that this
being a contract for an indefinite period was one to which s 4 of the Statute of Frauds [UK] applies and that,
for the appellant to succeed, it must have been in writing. The contract being parol he held that the
appellants case must be dismissed. However, he went on to consider the appellants claim even if the
contract had been outside the Statute and could have been proved by parol. He decided that, because of a
certain incident that occurred on 3 April 1957, the respondents were justified in dismissing the appellant.
Three points arise on the hearing of this appeal. First, was the contract within the Statute of Frauds
[UK]? Secondly, has the appellant been wrongly dismissed? Thirdly, if it is not within the Statute of Frauds
[UK] and he has been wrongly dismissed, what are the damages?
In deciding the question as to the Statute of Frauds [UK], the learned trial judge expressed himself as
follows:

531
I am of the opinion that either no bonus was promised or that if a bonus was promised the plaintiff
was engaged for an indefinite period. Having regard to the evidence, to the plaintiffs pleadings, which
do not specifically mention a contract for one year, that his pleadings in respect of a bonus at the end
of one years service are consistent with a contract for an indefinite period, and that Mrs Gabriels
statement that the contract was for an indefinite period was not challenged, I am of opinion that the
contract concluded between the plaintiff and the defendants was one for an indefinite period.
Counsel for the appellant has asked us to reverse that finding and say that this was a contract for a year
certain only, and counsel for the respondents would have us so to construe this finding of the trial judge that
the contract was to be for one year certain and for an indefinite period beyond. In my view, the learned trial
judge meant what he said. Earlier in his judgment he states the proposition of law quite clearly. He says, if
the contract of employment is for any indefinite period, some note or memorandum is necessary. I consider
that this is a misdirection in law and contrary to the decision in Souch v Strawbridge ((1846), 2 CB 808, 15
LJCP 170, 10 Jur 357, 135 ER 1161, sub nom Touch v Strawbridge, 7 LTOS 64, 12 Digest (Repl) 135, 844)
(see per Tyndale CJ (1846), 2 CB at p 815). Since, then, I consider that the contract is not within the Statute
of Frauds [U K], one must go on to consider whether the judge was right in holding that the appellants
dismissal was justified.
Particulars of the grounds for dismissal were given in the statement of defence. But the particular
incident on which the judge relied is not specifically mentioned in the particulars to the statement of defence.
The witness to this incident was Rita Seraphine, a clerk employed by the respondents. She said that the
appellant was told by his employer to come in early on 3 April so as to prepare some correspondence which
was to leave by air on the next day. The judge finds that the appellant arrived at the usual time at nine
oclock. Miss Seraphine states that he went upstairs and that about one quarter of an hour later, Antoine
Gabriel sent for the plaintiff. The plaintiff did not come. The messenger returned saying the plaintiff was
doing costing. After 12 noon plaintiff came down and went to Antoine Gabriel. Antoine Gabriel told plaintiff it
was too late, that he had no use for his services again. The learned trial judge accepted that evidence and
considered it sufficient to justify the dismissal of the appellant. There is nothing on the record to show that
the details of this incident were put to the appellant in cross-examination. In other words, it would appear
that the appellant was not given a proper opportunity to give his version of the incident. There is no
indication of the terms in which the message was conveyed to the appellant or of the exact terms or tone in
which he replied. The messenger was not called. It was only what Miss Seraphine had heard second-hand.
There is nothing to indicate whether the appellant in saying that he was doing costing and did not come
down was disregarding the business interests of his employer and was guilty of such disobedience as would
justify his dismissal. There is, further, the consideration that the bonus of a thousand dollars, if the plaintiffs
evidence is accepted, would have become due in about a months time and that the respondent may have
wished to get rid of him for that reason. What is sufficient evidence to justify a finding of wrongful dismissal
is a question of fact, not of law, and this court would not disturb the judges finding unless it was
unreasonable. But in my view, in this case I do not think that the evidence is sufficient to support his

conclusion. I think that the appellant was wrongfully dismissed. The question arises then as to what should
be the damages. The appellant is entitled to the loss he incurred during the time in which he might
reasonably be expected to be looking for fresh employment. That time, in my view, should be the period of
one month, for that was the basis of the contract between them.

532
He was engaged on a monthly basis, not merely that wages were payable monthly. He is, in my view,
entitled to the four days of April for which he worked and another $160, being one months wages.
Had the learned trial judge found that if the contract for this indefinite period had run for a full year, the
appellant would have been entitled to a bonus of a thousand dollars, then I consider that the trial judge
should have awarded, in assessing damages, something for the loss of opportunity which the appellant had
had to earn this thousand dollars. There is no specific finding in the judgment as to whether this term
concerning the thousand dollars was part of the contract, and I would remit this case back to the trial judge
to determine that question of fact. If he decides that the thousand dollars would have become payable in the
circumstances I have mentioned, then he should assess the damages under that head.
The judgment of the court below should be set aside and judgment entered for the appellant. The case
should be sent back to the trial judge to determine the question as to the one thousand dollars bonus and (if
he finds in the appellants favour) to assess the damages to which I have referred under this head. The
appellant is entitled to his costs here and below.
LEWIS J. I entirely agree.
MARNAN J. I also agree. I only wish to add one or two remarks as to the argument on the Statute of
Frauds [U K]. The point at issue is the nature of the contract, which depends on a resolution of the conflict
of evidence between the plaintiff and Mrs Gabriel. The learned trial judge rejected the plaintiffs contention
that the contract was for the fixed period of one year. He accepted Mrs Gabriels evidence, holding that the
contract was for an indefinite period. Counsel for the respondents argued before us with considerable force,
and if I may say so, with skill, to the effect that this court should construe those words an indefinite period
as meaning a period which was indefinite in point of final duration, but which was, at least, for a period of
more than one year. That I think is a result of misapprehension as to the test by which the application of the
Statute of Frauds to individual contracts is to be judged. The contract must be looked at to see whether by
its terms it was incapable of being performed within a year, and if by those terms it cannot be performed
within a year, the Statute applies. This is the point which seems to me to have given rise to
misunderstanding. It is what the parties agree, and not what they hope, that is material. I suppose every
employer of a personal servant, or private secretary, or confidential clerk, or indeed, of anyone who is going
to be in close relation during working hours with his employer, hopes that he has picked a good man, and
one who will give good service, and that the relation between master and servant will last for years. I have
little doubt that it was in this sense that Mrs Antoine Gabriel said in evidence that she had offered the plaintiff
employment on a permanent basis, hoping that he would do well. She probably had hoped that he would
say with the firm for a long time. But she went on to say that she offered $160 a month, and a little bit later
in her evidence, she said that she and her husband did not take the plaintiff for any definite time, on trial.
She did not take on the plaintiff for a year. I merely mention this as one of the reasons for which I, on my
part, am unable to agree with counsel for the respondents. I agree with my Lord and Mr Justice Lewis in
holding that this was a contract for an indefinite period in the sense that the period was fixed neither as to its
length nor its shortness of duration.
Appeal allowed.

533
(1959) 1 WIR 534

Motor Union Insurance Co Ltd v Linzey

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
RENNIE, ARCHER AND WYLIE JJ
12 NOVEMBER 1959

Insurance Proviso in policy limiting the insurers liability Can the fact that the insurers agent did not
bring the proviso to the knowledge of the assured make insurer liable without limit?

JL sued an insurance company for 554 6s 4d, being the unpaid balance of the amount of a judgment which
a passenger in his motor car obtained against him. He had previously insured his motor car with the
insurance company and, on the suggestion of the companys agent and for an additional premium, covered
the risk of injury to passengers in his motor car. The agent did not inform him that that risk was limited to
500 per passenger in respect of any one accident, which was the fact.
A passenger in JLs motor car received injuries in an accident and in an action he brought against him
recovered 1,054 6s 4d damages.
In the suit against the insurance company JL, in his reply, admitted the paragraph of the defence in which
the insurance company had set out the clause of the policy which dealt with passenger risk and included a
proviso limiting the liability.
The policy of insurance contained a term which provided that all differences arising out of the policy should
be referred to arbitration. JL did not refer the matter to arbitration.
Held: that the appeal should be allowed and judgment entered for the appellant; by Rennie Archer and
Wylie JJ, on the ground that the failure to refer the dispute to arbitration is a complete answer to the claim,
and by Rennie J, on the further ground that the policy can be unlimited only if the parties to it agreed that it
should be unlimited. Failure on the agents part to inform the assured that it is limited will not remove the
limitations; and by Arhcer J, on the further ground that there was no issue as to the proviso limiting the
insurers liability being a term of the policy. It was not competent for the court to create and adjudicate upon
issues not raised by the pleadings and moreover inconsistent with them.
Appeal allowed.
No cases referred to
Appeal
Appeal by the insurance company from the judgment of the Supreme Court of the Windward Islands and
Leeward Islands (Trial DivisionLewis J) dated 5 January 1959, granting JLs claim. The facts appear in the
judgment of Rennie J.
Henery and Lockhart (instructed by Henry) for the appellant
Kelsick and Francis (instructed by Francis) for the respondent
RENNIE J. This appeal is in respect of the appellants liability under a policy of insurance.
At the hearing of the appeal, the respondent applied to amend his reply so as to deny that the proviso in
the policy, which limited the appellants liability, formed a term of the policy and to make a consequential
amendment to paragraph 8. The court took the view that to grant these amendments would result in an
injustice to the appellant and accordingly refused the application.
In November 1951, the respondent insured his Ford motor car with the appellant in the circumstances I
shall hereafter relate. He did not take delivery of the policy when it was issued; instead he asked the
appellants agent to keep it for him. Between November 1951, and August 1952, the respondents car was
involved in three accidents. In respect of the first he was paid 9 11s 9d by the appellant and, in respect of
the second, he was paid $176.

534
The third provides the subject-matter of this appeal. In the third accident one Neslie King, a passenger in
the respondents car, was injured. He claimed damages for his injuries and eventually brought an action
against the respondent. In this action he was awarded damages which, together with the costs of the action,
amounted to 1,054 6s 4d. The appellant has paid Neslie King 500 of the amount of his judgment and
contends that that sum represents the extent of its liability under the policy of insurance. The respondent
claimed and obtained a judgment against the appellant for a further sum of 554 6s 4d. It is in respect of
that judgment that this appeal is brought.
The policy of insurance contains two provisions that figure prominently in the litigation. The first limits
the appellants liability to 500 in respect of injury to a passenger in any one accident and the second
requires differences arising out of the policy to be submitted to arbitration. Nothing turns on the wording of
the proviso that limits the liability to 500 and for that reason it does not seem necessary to quote the
proviso. But the position is not so clear with respect to the arbitration clause. It is necessary to look at this
clause to see if the respondent has complied with its terms. That clause is as follows:

All differences arising out of this Policy shall be referred to the Arbitration of some person to be
appointed by the Company and the Insured or if they cannot agree upon a single Arbitrator to the
decision of two Arbitrators one to be appointed in writing by each party and in case of disagreement
between the Arbitrators to the decision of an umpire who shall have been appointed in writing by the
Arbitrators before entering on the reference and an award shall be a condition precedent to any liability
of the Company or any right of action against the Company. If the Company shall disclaim liability to
the Insured for any claim hereunder and such claim shall not within twelve calendar months from the
date of such disclaimer have been referred to Arbitration under the provisions herein contained then
the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be
recoverable hereunder.
I now go back to the circumstances in which the car was insured and for this purpose quote from the
judgment of the learned trial judge:
In November 1951, the plaintiff who was the owner of a Ford V8 motorcar whose registration
number was M 10 went to the office of Messrs. M S Osborn, the local agents of the Motor Union
Insurance Company Limited (hereinafter referred to as the Company) for the purpose of having his
car insured. He told Mr Langley, an employee of Messrs. Osborn that he wanted a Comprehensive
Insurance Policy on his car. Mr Langley informed him of the premium he would have to pay for such
policy and added that for an extra $5.00 per year for each passenger carried in the plaintiffs car, the
plaintiff could insure himself against the risk of injury to passengers in his car up to a maximum of five.
In describing the negotiation between Mr Langley and himself, the plaintiff says in his evidence:
I understood that I would be covering such passenger against accident. I accepted this offer and
took out Comprehensive Insurance on my car and also coverage for five passengers. I understood
Comprehensive Insurance on my car to mean that my car and any other car with which it might come
into collision would be covered if both were damaged. After this discussion I paid the premium and left
the office. At no time was any policy shown to me. I first saw the policy of insurance issued on my car
in January 1955, when I went to St Kitts and was shown the policy by my solicitor, Mr FE Kelsick.
Those circumstances, in the opinion of the learned trial judge, imposed a duty on the appellants agent to
inform the respondent that the liability was limited

535
to 500 and failure to do so gave the respondent the right to regard the policy as being unlimited in respect
of passengers.
I am unable to agree with such a view. The policy can only be unlimited if the parties to it agree that it
should be unlimited. Nowhere in the evidence or in the judgment am I able to find any such expression of
agreement. It would seem that the highest the respondent can put his case is that he thought it was
unlimited and no one told him it was not. That, in my view, does not signify agreement. I have stressed this
feature of the case because of the curious position in which the respondent finds himself. To succeed in his
claim he must put forward the policy of insurance but that document contains the provision that limits the
appellants liability. To meet that situation he told of the circumstances in which he insured the car. But to
succeed he would have to go further and get rectification of the policy and to achieve that he must establish
a prior agreement and the failure to correctly reduce that agreement into writing. This he has not done. On
that ground it seems to me that the appeal should succeed.
I now turn to the arbitration clause and to the passage in the judgment where the learned trial judge
said:
I am therefore of the opinion that the Company in failing to refer the difference between itself and
the plaintiff to arbitration as it could have done, or to stay this action after it had been commenced by
the plaintiff, or to avail itself of the defence that the plaintiff had not obtained an award prior to the
institution of this actionall of which courses were available to it under condition 8 of the policy and the
Arbitration Act, 1889has by such conduct waived this condition and it cannot now rely upon the
condition or any part thereof as a defence against the plaintiff.
I cannot agree that a duty was imposed on the appellant to submit the difference to arbitration. The
appellant was not the claimant seeking to prove its claim, it was endeavouring to resist the claim. In other
words, it was not looking for the appropriate tribunal in which to launch a proceeding. Nor can I agree that
the appellant did not avail itself of the defence afforded it by the arbitration clause. In paragraph 5 of its
defence, it pleaded the clause and set out that in March 1955, it disclaimed further liability. In my view, the
reference of the matter to arbitration was a condition precedent to the bringing of an action and the failure of
the respondent to refer it to arbitration must necessarily result in the failure of his claim.

For the above reasons, I will allow the appeal and set aside the judgment of the court below with costs
in this court and in the court below.
The respondent, the owner of a motor car, sued the appellant, a motor insurance company, on a policy
dated 24 November 1951, whereby the appellant effected a contract of insurance between the appellant and
the respondent, for 554 6s 4d, the balance due on a judgment recovered against the respondent by a
passenger in his motor car in a claim for damages for injuries received in an accident. The respondent
admitted that the defendant had paid 500 towards the judgment which was for the sum of 1,054 6s 4d.
The appellant admitted the contract of insurance and identified the policy. The appellant also pleaded the
payment of 500 to the respondent and referred to the clause of the policy of insurance which dealt with
passenger risk, arbitration concerning differences arising out of the policy, and disclaimer of liability by the
company, and said that it had exercised its right to disclaim in March 1955, and that

536
there had been no award in pursuance of the arbitration clause. The arbitration clause made an award
a condition precedent to any liability of the company or any right of action against the company and further
provided that if the company disclaimed liability to the insured for any claim under the policy and such claim
was not referred to arbitration under the provisions of the policy within twelve calendar months of the
disclaimer, the claim should for all purposes be deemed to have been abandoned and should not thereafter
be recoverable under the policy.
The respondent in his reply admitted paragraph 2 of the defence in which the appellant had set out
clause 10 (c) of the policy which dealt with passenger risk. He also admitted the arbitration and disclaimer
clause but denied that the appellant had ever disclaimed liability. He alleged that the policy had never been
shown or explained to him until after the accident which gave rise to his claim and he referred to the clauses
in the policy dealing with the conduct by the company of proceedings brought against the insured. He then
pleaded that the appellant was estopped from relying upon the limit of liability set by clause 10 (c) of the
policy by the appellants conduct of the proceedings brought against him by the injured passenger.
At the close of the pleadings, therefore, the respondent was relying upon the policy as evidencing the
contract of insurance. He had not pleaded that the proviso to clause 10 (c) was not a term of the contract
but merely that the appellant should not be allowed to rely upon it, and he had not pleaded that the appellant
company had waived its rights under the arbitration clause but had only alleged that the company had not in
fact disclaimed liability. His action was not for rectification of an agreement nor for damages for
misrepresentation. It was a simple claim for debt.
In that state of the pleadings, the action could have been stayed without the hearing of any evidence for
the appellant had pleaded the absence of an arbitrators award and the respondent had not pleaded either
that there had been an award or that the appellant had waived the condition precedent which the arbitration
clause provided for. Counsel for the company did not, however, ask for a stay of the action, presumably in
view of the defence of disclaimer, and the judge proceeded to hear evidence. No application for an
amendment of the pleadings was ever asked for by the respondent and there were, therefore, only two
issues which the judge had to decide, namely, whether the company had in fact disclaimed liability in March
1955, the writ in the action having been issued in November 1957, and, if not, whether the company was
estopped, by the conduct pleaded in the respondents reply, from relying upon the proviso to clause 10 (c) of
the policy. If the first of these two issues was resolved in the companys favour, the matter was at end and
the second issue did not arise.
There was no issue as to clause 10 (c) with its proviso being a term of the policy. Evidence given by the
respondent as to an oral discussion between himself and an agent of the company antecedent to the issue
of the policy was, however, admitted by the judge and he has based himself upon it. He has found that the
company had not acted improperly in defending the action brought against the respondent, and that the
respondents plea of estoppel, insofar as it was directed to the companys right to defend the action, failed.
But he has also found, not that the company is estopped from relying on the proviso to clause 10 (c) by
conduct alleged in his pleadings by the respondent, but that the proviso formed no part of the contract
between the parties. This is in the face of the pleadings that it did. He has also found that the company
waived the condition precedent for which the arbitration clause provides by not itself referring the dispute to
arbitration, by not setting up the absence of an award as a defence, and by not applying for a stay of the
action, which failures he considered to have amounted to estoppel by conduct. With regard to his

537
finding that the company did not avail itself of the defence that no arbitration award had been made he
was clearly in error; such a defence is contained in paragraph 5 of the defence to the respondents claim.
But, apart from that consideration, his finding that the company was estopped from setting up the arbitration
clause is altogether wrong. There was no plea of estoppel in relation to that clause and no evidence
directed to it by the respondent. The only plea of estoppel made concerned the companys conduct of the
action brought against the respondent whereby it was alleged that that conduct prevented the company from
denying liability for the whole judgment in that action or from relying upon the limit of liability mentioned in
the proviso to clause 10 (c) of the policy. I am unable to see in what way the company could be so

precluded and the judge has himself pointed out that an insurance company has an undoubted right to
defend an action in circumstances in which it had an opportunity of settling a claim even where its liability to
an insured is limited by the terms of the policy. The ground of estoppel on which the judge decided the
question of the applicability of the arbitration clause was completely alien to the case, but, in addition, it was
without foundation. No duty to refer the dispute to arbitration was imposed on the company. The company
had the right to resort to arbitration and so had the respondent but there was no obligation on the company
to do so and there can therefore be no question of a breach of obligation on the part of the company. The
company also had the right to apply for a stay of the action, and if it had not been relying on the defence that
the action could not be maintained at all because more than twelve calendar months had elapsed since it
had disclaimed liability, such a course of action would have been appropriate, but in the circumstances,
there was no need to take that course and failure to take it did not, as the judge found, constitute a waiver of
its rights under the clause.
It is beyond doubt that the company disclaimed liability either in January or March 1955. In my view,
therefore, the judge ought to have dismissed the action as soon as that fact was ascertained. Nothing
remained of the case thereafter and it was not competent for him to have created and adjudicated upon
issues not raised by the pleadings, and, moreover, inconsistent with them. The appeal should be allowed
and judgment entered for the appellant with costs here and below.
WYLIE J. In paragraph 5 of the statement of defence, the appellant has set out in full the arbitration clause
contained in the policy of insurance and pleaded that in March 1955, the appellant disclaimed further liability
and that the present claim has not been referred to arbitration. The clause, the lack of an award and the
failure to refer to arbitration within one year of disclaimer were thus pleaded as a defence to this claim at the
earliest stage in the defendants pleadings. Moreover, while the appellant might, if it so chose, have initiated
arbitration proceedings, there was no onus on it to do so. Nor do I consider that the appellant was bound to
apply for a stay of proceedings rather than plead the absence of an award and the lapse of time as a
defence to the claim. Indeed, the concluding words of the clause putting an end to the claim would suggest
that the course followed by the respondent was the more appropriate in the circumstances.
I do not consider, therefore, that the appellant had waived the arbitration clause. Moreover, in
paragraph 3 of his reply, the respondent has admitted the arbitration clause and has merely pleaded a denial
that the defendant had denied liability under that clause. Counsel for the appellant submitted that the
uncontroverted evidence was to the effect that the appellant had denied liability for this claim in January
1955, more than a year before the proceedings were commenced in November 1957. The respondent did
not contest this submission. The evidence is clearly to that effect.

538
The arbitration clause and the consequences, that followed under that clause from the failure to refer
the claim to arbitration within the stipulated time are, in my judgment, a complete answer to this claim, and,
therefore, it is not necessary to consider the question whether the proviso limiting the liability of the appellant
to 500 in a claim under the passenger risk clause was part of the contract. Moreover, this question was not
put in issue in the pleadings and in any case, in my view, this would have been the very eifference that
should have been submitted to arbitration within the time limited by the arbitration clause.
I agree that this appeal should be allowed and judgment entered for the appellant with costs both on the
appeal and in the court below.
Aoppeal allowed.

(1959) 1 WIR 539

Nisa v Zaheruddin
FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, LEWIS AND MARNAN JJ
23, 24 NOVEMBER, 2 DECEMBER 1959

Divorce Malicious desertion What must be proved.

A couple, after being married in 1950, lived in the husbands fathers home. This arrangement worked well
for a time but later that year trouble arose and the couple removed to the wifes fathers home. They lived
there for eighteen months during which time their marital relationship had sadly deteriorated. In August
1952, the husband left his father-in-laws home and went to a place called Adventure where he rented a
house and invited his wife to join him there. She refused to do so.

In April 1953, she took out a summons against him for maintenance. At the meeting that ensued in the
Magistrates Court, an attempt was made to bring the parties together. At that meeting the wife demanded a
separate house and this the husband agreed to provide. He provided such a house and invited her to join
him there. She refused to do so.
Held: that her refusal to live in the house provided by her husband, together with the whole history of the
marriage, is conduct which may be assessed as a deliberate, definite and final repudiation of the marriage
against the will of the husband without just cause and amounts to malicious desertion.
Appeal dismissed.
Cases referred to
Matthews v Matthews [1931-1937] LRB 459
Tiwari v Tiwari (1954) unreported (West Indian CA)
Bater v Bater [1950] 2 All ER 458, [1951] P 35, 114 JP 416, 66 (pt 2) TLR 589, 94 Sol Jo 533, 48 LGR 466,
CA 27 Digest (Repl) 294, 2391
Appeal
Appeal by the respondent from the judgment of the Supreme Court of British Guiana (Trial DivisionJailal Ag
J) dated 14 May 1959, granting an order nisi in divorce. The facts appear in the judgment.
Adams (instructed by Carlos Gomes) for the appellant
Dibidin (instructed by Daniel P Devidin) for the respondent

539
MARNAN J. This appeal arises out of a suit for divorce, in which the present respondent, to whom I shall
refer as the husband, was petitioner. The proceedings resulted in a decree nisi being pronounced in
favour of the husband, on the ground of malicious desertion, and it is against that finding and decree that the
wife now appeals. The order of the learned trial judge also contained directions as to the custody of the two
children of the marriage, but that is a matter which is not in dispute before this court.
The parties were married in March 1950, at Melville, in the island of Wakenaam, where the wifes
parents resided. According to the marriage certificate the husband was then about 25 years of age and the
wife some three years younger. On the same occasion the husbands brother married the wifes sister, and
immediately thereafter the two newly-wed couples set up house together at the home of the husbands
father, which was at a place called Huist Dieren on the Essequibo coast. The male adult members of the
husbands family were jointly concerned in carrying on the business of goldsmiths, in which they were well
established in the district around Huist Dieren.
These domestic and business arrangements worked happily until late in the year 1950. Trouble then
arose which led to the two young couples moving from Huist Dieren to a house provided by the wifes father,
and in the immediate curtilage of his own house, at Melville, in Wakenaam. The origin and causes of the
trouble or troubles were strongly contested in evidence, and the learned trial judge found that neither party
told the whole truth in that respect. There are, however, two points which seem clear beyond dispute: (a)
that living in Wakenaam suited the inclinations and convenience of the wife and her sister, and was, by
comparison, adverse to those of the husband and his brother; (b) that as from the time of the move to
Wakenaam the marriage with which this court is now concerned became progressively less successful.
Nevertheless, the two couples kept joint house in Wakenaam for over eighteen months. Children were
born of the present appellant in February 1951, and April 1952. The husbands had to travel frequently from
the island to the coast in order to maintain contact with the customers of their trade. They also borrowed
money from their father-in-law, whom the wife described in evidence as a prosperous butcher, to provide
themselves with tools in place of the tools left with their own father and brothers at Huist Dieren. They paid
the money back, and it would be wrong to assume that they were ungrateful for the loan. But there were a
number of other, possibly trivial, incidents, which in fact gave rise to quarrels between the husband and the
wife, and there can be no doubt that by the middle of 1952 the marital relationship between the two had
sadly deteriorated.
In August of that year the husband and his brother left Wakenaam, taking with them their personal
effects. They found and hired a house at a place called Adventure, which is on the coast, and suitably
placed for the purposes of their trade. it is common ground that the husband neither sought nor received his
wifes agreement to this step. There was a conflict of evidence as to whether, at the last moment, he invited
her to go with him.
However, within ten days of his final departure the husband wrote and invited his wife to join him at
Adventure, suggesting a house-sharing arrangement, as before, with his brother and the wifes sister. The

proposal was thus in no sense novel. However, it was not accepted by the wife, who replied to the letter, but
remained in the society of her sister and her children at the home of her parents in Wakenaam. A little later
she sought the advice of her local district Commissioner, a Mr Forbes. This step resulted in a meeting
between the spouses at Mr Forbess office, in October 1952, when it was suggested that the husband
should find a separate house for his wife in preference to restarting the sharing arrangement. There was no
evidence that the wife had asked for a separate home on any earlier occasion. Thereafter,

540
however, the husband appears to have had no further meeting with his wife until April 1953, when the
latter took out a summons for maintenance, based on allegations of desertion and neglect to maintain.
The encounter, necessitated by the hearing of these proceedings in the Magistrates Court, provided
another opportunity for amicable settlement of the parties problems.
The wife maintained her demand for a separate home. The husband agreed, and the magistrate
adjourned the case, on 8 July and again on 5 August 1953, to enable the wife to go to see a house which
the husband had found and provisionally secured. There was a conflict of evidence as to why the wife failed
to visit this house during July. Eventually the parties, with some friends who were brought along as potential
witnesses, met at the house on 9 August 1953, and the wife, having looked at it, declined to resume married
life with her husband at that house. On 25 September 1953, the husband filed his petition for dissolution of
the marriage, based on allegations of cruelty and of malicious desertion. The allegations of cruelty were
unsubstantial, were rejected by the learned trial judge, and can be disregarded. The allegation of malicious
desertion was pleaded with much circumstantial detail by way of narrative, but without any precision as to
the time or date from which desertion was alleged to have begun. It was thus left open to the learned judge
to draw such inferences from the evidence as he thought proper, without room for objection on behalf of the
wife that the husbands case should be restricted to proof of desertion at any particular time.
I repeat that the petition was filed on 25 September 1953. There was no delay in the filing of the
Answer. Nevertheless, it appears that the suit did not come on for hearing until September 1957, when the
witnesses for the husband were heard.
The wife and her witnesses did not give their evidence until February 1959. Judgment was delivered on
14 May 1959. This court is given to understand that there are reasons why such an extraordinary
prolongation of the hearing was inevitable. That it was undesirable is obvious. But having regard to the
conclusion I have reached it is only necessary to comment that the evidence of the wife and her witnesses
must have been the more fresh in the judges mind, when he decided the case, and insofar as he preferred
the evidence of the husband to that of the wife, the lapse of time between the two may be regarded as
having tended to operate, if at all, in favour of the wife.
The learned judge held that the conduct of the wife, on 9 August 1953, when she refused to join her
husband in the new separate home that he had provided, was tantamount to a final repudiation of the
marriage.
A case of this nature depends largely upon decisions of disputed matters of fact. In this court the main
argument advanced on behalf of the wife, and, to my mind, rightly so presented, was that, assuming the
truth of all the evidence tendered by and for the husband, the judge was not, as a matter of law, entitled to
make a finding of malicious desertion, within the meaning of s 9 of the Matrimonial Causes Ordinance [BG].
It was submitted that the concept of malicious desertion is based on Roman-Dutch law, and that the fact
that it was formerly necessary for a deserted spouse to take proceedings to compel the return of the
deserter before he or she could successfully establish a case of malicious desertion, pointed to the extreme
gravity of this particular matrimonial offence. It was further submitted that it was still the law of British
Guiana that a petitioner alleging malicious desertion must prove affirmatively that he or she had done
everything possible to persuade the deserting spouse to return. And it was also argued that, since by s 3 of
the Matrimonial Causes Ordinance [BG] desertion for a period of two years must be proved before even a
decree of judicial separation can be obtained, the time for which a respondent was alleged to have been in

541
desertion was a most important element in considering whether the offence of malicious desertion had
been proved.
Counsel, who urged those points on behalf of the wife, was unable to indicate any real distinction
between the concept of malicious desertion and desertion as known to English Matrimonial law, but he
stressed that the continuance of a state of desertion for at least three years is, by English law, a prerequisite
of obtaining a divorce on that ground, a point which in my view validly reinforced his argument as to the
importance of the time element. He also referred the court to the judgment of Verity J, in Matthews v
Matthews ([1931-1937] LRB 459) where the learned judge reviewed the principles applicable to proof of the
matrimonial offence of malicious desertion as follows:
There does not appear ever to have been reported a comprehensive definition by the courts of this
Colony of the term malicious desertion, but consideration of cases decided in the courts of both South
Africa and Ceylon gives assurance that under the Roman-Dutch system of law from which this ground

for divorce has been adopted and to which one may rightly refer for guidance in this regard, malicious
desertion must at least include a deliberate, definite, and final repudiation of the marriage state by one
spouse against the will of the other and without just cause or legal justification.
The existence of this determination on the part of the deserting spouse may be deduced from
conduct of varying kinds, but that its existence must be proved or properly inferred from the evidence
is essential if it be desired that the court should dissolve the marriage on this ground.
The court will not lightly determine the marriage bond where there is no clear and convincing
evidence of such final repudiation nor by its decree will the court convert into final dissolution what may
well be but a temporary withdrawal, the result of hasty disagreement or misunderstanding.
It may be desirable that the law should prescribe, as in the case for petitions for judicial separation,
some period beyond which alone could such a petition as the present be brought, not with the object of
substituting statutory desertion for malicious desertion, but for securing a reasonable period within
which the erring spouse might have time for consideration and the aggrieved spouse have opportunity
for seeking by every means just reconciliation. This is a view which in my opinion might well receive
consideration in the proper quarter, but, be that as it may, no such period is prescribed by the existing
laws of the Colony, nor do those laws require that there be refusal on the part of the respondent to
comply with an order for the restitution of conjugal rights before a decree of dissolution of marriage be
pronounced on the ground of malicious desertion as is required in South Africa.
Nevertheless, it is in accordance with what I conclude to be the fundamental principles of the
divorce laws of this Colony that the respondent should be shown by evidence of his or her conduct
definitely to have reached a final determination to repudiate the obligations of the marriage state, and
also that it should be shown by evidence of the petitioners conduct that such repudiation is against his
or her will.
While, therefore, it is not required by the laws of this Colony that there should be any defined period
of desertion nor that legal proceedings should have been instituted to secure either the return of the
deserting spouse or refusal of return in obedience to an order of the court, yet in many cases the
element of time will be one for consideration in ascertaining whether or not the desertion is in fact
evidence of final repudiation. The efforts of the petitioner to secure or afford opportunity for the return
of the respondent, moreover, will be for consideration in ascertaining whether or not the withdrawal is
against the will of the petitioner.

542
For my part I have no hesitation in adopting as correct the principles so clearly stated in the passage I
have just read. It remains to see how those principles apply to the facts of this case.
It is implicit in the learned trial judges findings that he held that the wife put herself into a state of
desertion by her behaviour on 9 August 1953, when she refused to live with her husband at Adventure, and
returned to her fathers house in Wakenaam. The husband filed his petition on 18 September without any
further communication with his wife. Indeed, he stated that he made up his mind to start proceedings in
direct consequence of what had happened on 9 August. The period of desertion which preceded the filing of
this suit could, therefore, scarcely have been shorter, and after 9 August the husband made no such efforts
to secure his wifes return to him as were referred to by Verity J, as being for consideration in ascertaining
whether or not the withdrawal was against his will. How then, it is argued, could the learned trial judge have
been justified in finding that the wifes conduct on 9 August amounted to a deliberate, definite, and final
repudiation of the marriage state against the husbands will and without just cause? How was it possible to
exclude the possibility that she intended no more than a temporary withdrawal, the result of hasty
disagreement or misunderstanding? And where was the evidence that the wifes withdrawal was against the
husbands will?
In my opinion the answers to those questions are to be found in the fact that the learned trial judge did
not look at the events of 9 August in isolation. The whole history of the marriage was in evidence before
him, and he was entitled to take into account any matters which helped to throw light on the true purpose
and significance of the wifes behaviour on 9 August. He preferred the evidence of the husband to that of
the wife when he found it necessary to resolve a conflict between the two, and upon his view of the evidence
the pattern of the facts may be summarised as follows:
(a) it was mainly at the wifes insistence that the husband left Huist Dieren for Wakenaam
January 1951;
(b) conditions of life at Wakenaam, though no fault of the husband, were sufficiently aggravating
make him unhappy there and to justify his decision to leave, which he did without any intention
bringing the marriage to an end;
(c) the wife rejected the husbands first request, made a week later, that she should join him
Adventure;

in
to
of
at

(d) subsequently the wife offered to rejoin the husband if he would provide a separate house where
they could live alone;
(e) eventually the husband did provide such a house, which was suited to the standard of life to
which the parties were accustomed;
(f) on 9 August 1953, the wife for the first time went to the house, but her whole attitude was that
she was only there to fulfil her promise to the magistrate, and not with any genuine desire to live there
with her husband, which she in fact refused to do.
In those circumstances, and having seen and heard the witnesses for himself, the learned trial judge
formed the conclusion that the wifes behaviour on 9 August 1953, was based upon, and conveyed to the
husband, a determination not to live with him otherwise or elsewhere than at her fathers establishment in
Wakenaam. He had formed and expressed the view that when the spouses had in fact lived at Wakenaam
the wifes father had intervened in their domestic life, and that the husband had suffered considerable
inconvenience in the conduct of his trade. Having regard to the well-known authorities that were cited to us
on the question of spouses deciding where to live, it is to my mind plain that the wife was not entitled to
impose any such condition of residence,

543
or to rely on it as a justification for refusing to join her husband in the area where he had to work. If the
learned trial judge was right in his conclusions as to who was telling the truth, and as to the significance of
the wifes conduct on 9 August 1953, he was in my opinion justified in assessing that conduct as a
deliberate, definite and final repudiation of the marriage by the wife, against the will of the husband, and
without just cause.
The short and fundamental point in this appeal is whether this court should say that there was not
enough evidence to justify the judge in finding that the wifes conduct on 9 August was a clear and final
repudiation of the marriage.
In sketching the pattern of the facts upon which he based that finding I have excluded evidence to which
he himself did not expressly refer in his judgment. But there was other evidence, which was unchallenged,
and which he was entitled to take into account. It will be sufficient to mention two matters. The husband
swore that on 9 August the wifes father was present, and that when he attempted to persuade her to stay,
holding her hand, the father intervened with words to the effect, loose her, she is no longer your wife.
Secondly, in spite of the fact that his petition for divorce was pending, the husband made a final effort to get
his wife to return to him as late as October 1954. He met her, again in the presence of her father, and, as he
put it, begged her to return. She turned her back on him, and her father told her not to worry with her
husband. On each of those occasions the wife, by her conduct, plainly sided with her father against her
husband. I do not think that the fact that the learned trial judge did not specifically refer to those matters in
the course of his judgment implies that they should be disregarded by this court, or that the judge did not
consider that they shed light on the true purpose and character of the wifes conduct on 9 August.
In these circumstances I have come to the conclusion, though not without hesitation, that since the fact
that the judge preferred the word of the husband to that of the wife, there was evidence to justify him in
finding as a matter of law that the offence of malicious desertion had been proved. My hesitation was due to
the short interval of time that elapsed between the encounter of 9 August 1953, and the filing of the petition.
But, as was pointed out by counsel in his simple and able argument on behalf of the husband, the accepted
evidence, taken as a whole, disclosed a history of the wife preferring her family home to her husband in an
increasing measure, until she reached the point of repudiating the marriage in a manner which left the
husband without hope for its future. In my opinion it is not open to this court to pronounce that the learned
trial judge was wrong in taking the same view.
I only wish to add that I regard this as an exceptional case, which depends on its own facts and on the
view taken by the judge as to the truthfulness of the parties. I hope that it will never be regarded as a
precedent for any departure from the high standard of proof required for a judicial finding of malicious
desertion. This court was referred to the decision of the West Indian Court of Appeal in Tiwari v Tiwari
((1954) unreported (West Indian CA)). It appears from the record that the facts of the case had a superficial
similarity to the facts of the present case, the trial judge found malicious desertion, and the court reversed
his finding. There were, however, a number of letters passing between the solicitors for the parties, from
which the appellate court was in as good a position to draw inferences, as had been the trial judge, and the
decision turned largely on the correspondence. I have no doubt that it was correct. The only statement of
principle was a citation from the judgment of Bucknill LJ, in Bater v Bater ([1950] 2 All ER 458, [1951] P 35,
114 JP 416, 66 (pt 2) TLR 589, 94 Sol Jo 533, 48 LGR 466, CA 27 Digest (Repl) 294, 2391) ((1950), 114 J P
at p 417) as to the high standard of proof required in all divorce cases, with which I respectfully agree. If,
therefore, any useful contrast can be drawn between the decision in Tiwari v Tiwari ((1954) unreported
(West Indian CA)) and the decision of this court in the present case in my opinion it can only serve to
emphasise

544

that no two human relationships are exactly alike. In my judgment the present appeal must be
dismissed. I would make no order as to the costs of the appeal.
HALLINAN CJ. I agree.
LEWIS J. I also agree.
Appeal dismissed.

(1959) 1 WIR 547

Crawford And Another v Ramnaraine And Others

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, LEWIS AND MARNAN JJ
24, 25 NOVEMBER, 2 DECEMBER 1959

Trespass Licence Revocation Finding of judge that the defendants were not trespassers Whether
inconsistent with an order restraining them from further trespassing on or using the land.
In an action for trespass to land with a claim for an injunction to restrain the defendants from further
trespassing on or occupying the land, the trial judge found that the defendants were licensees in exclusive
occupation of the land, that they were not trespassers and that the licence given to the defendants had been
effectively determined and he granted an injunction.
Held: that the findings that the defendants were not trespassers up to the time of action but that the plaintiffs
were entitled to an injunction are inconsistent with each other.
Appeal allowed. New trial ordered.
Case referred to
Minister of Health v Bellotti [1944] 1 All ER 238, [1944] 1 KB 298, 113 LJKB 436, 170 LT 146, 60 TLR 228,
CA, 30 Digest 540, 1747
Appeal
Appeal by the defendants from the judgment of the Supreme Court of British Guiana (Trial Division Jailall
J) dated 20 September 1958, granting the plaintiffs claim for an injunction. The facts appear in the
judgment of Lewis J.
Peters (instructed by H A Burton) for the appellants
Hardyal (instructed by R H Tiwari) for the respondents
LEWIS J. In this case the plaintiffs-respondents claimed damages for trespass on certain lands situate on
the Corentyne Coast, of which they were owners by transport, and an injunction to restrain the defendantsappellants from further trespassing on or using or occupying any portion of the said lands. The trial judge
dealt with the lands in three sections, firstly, a section enclosed by the defendants and on which they had a
house, secondly, a section used as a coconut and provision farm, and thirdly, a section used for the
cultivation of rice. With regard to the house area he found that the defendants were licensees in exclusive
occupation; with regard to the coconut and provision farm area he held that they were using the area in
common with and by permission of some of the plaintiffs; and with respect to the rice area he found that they
were tenants of the plaintiffs of six acres thereof and that their tenancy was governed

545
by the provisions of the Rice Farmers (Security of Tenure) Ordinance, 1956 [B G]. His decision was as
follows:
The plaintiffs have claimed damages for trespass as well as an injunction against the defendants.
Finding as I do that up to the time of the action they were not trespassers that portion of their claim
must fail. As I regard the licence given to the defendants as having been effectively terminated,

however, I consider that the plaintiffs are entitled to an injunction for which they have asked. The
defendants and/or their agents will therefore be restrained from trespassing or occupying any portion
of the land in question save and except the six acres of this land which they have under rice
cultivation. This injunction will take effect from 21 March 1959.
From this decision the defendants appealed on various grounds, all of which were abandoned at the
hearing. This court allowed an amendment to enable the following ground to be argued:
That since the judge found that the defendants were licensees in respect of the area occupied by
the house, and that there was no trespass, it was not open to him to find that the licence was
determined or to grant an injunction.
The question for decision is therefore whether the learned judge was right in granting an injunction.
The findings that the defendants were not trespassers up to the time of action but that the plaintiffs are
entitled to an injunction are inconsistent with each other. The question whether or not the defendants were
trespassers in respect of the lands other than the six acres of rice lands depends upon the further questions
whether the licence to occupy and use those lands had been terminated and the defendants had been given
a reasonable time to remove themselves and their belongings. The female defendant had purchased the
house in 1936, but had been living in it from the time of its erection on the land in 1927, and her husband,
Sydney Crawford, had been living there with her from 1938. They had for years been making provision
gardens on the land. Upon the determination of the licence they would be entitled to a reasonable time to
make arrangements for removing their house to another spot as well as for removing their provision
gardens. In my view, they would require not less than three months to enable them to do so.
If the plaintiffs brought their action before such a reasonable time had elapsed they would not be
entitled to succeed and their application for an injunction should be dismissed. I respectfully agree with and
adopt the statement of Goddard LJ (as he then was), in Minister of Health v Bellotti ([1944] 1 All ER 238,
[1944] 1 KB 298, 113 LJKB 436, 170 LT 146, 60 TLR 228, CA, 30 Digest 540, 1747) ([1944] 1 All ER at p
245):
If a licensor determines the licence, he is bound to give a reasonable time within which the
determination is to take effect, so that the licensee can collect himself, his property or whatever it may
be, from the premises in respect of which the licence has been withdrawn. He is bound to give a
reasonable time and, if he does not and takes proceedings before the reasonable time has elapsed, he
loses his action.
In this case the trial judge has not said at what date the licence was terminated, and his finding that at
the time of the action the defendants were not trespassersagainst which the plaintiffs have not appealed
seems to presuppose the further finding that though the licence had been effectively terminated the
defendants had not had a reasonable time in which to remove their belongings. The judge has not,
however, expressly so stated, and it is not clear whether this was what he meant. The only evidence of
determination of the licence is the statement of the plaintiff Ramnaraine that in 1954 I told the Crawfords to
move the house. If the learned judge was relying on this statement, it is strange that he should have
considered that a period of some three

546
years prior to the commencement of the proceedings was not a reasonable time. It seems more likely
that the judge did not accept this statement as evidence of revocation of the licence but considered that the
initiation of the action for trespass was effective in law to determine it. This view is supported by the fact that
he suspended the coming into effect of the injunction for six months, thus giving the defendants ample time
to find other accommodation. Assuming, without deciding, that the filing of the writ would amount to
revocation of the licence, the defendant would nevertheless not be entitled to succeed on his claim for an
injunction, for his action would have been premature, being commenced before the lapse of a reasonable
time, and this difficulty could not be overcome by the grant of an injunction to take effect at some future date.
The success or failure of the plaintiffs claim falls to be decided upon the facts as proved to exist at the date
of commencement of the action, and not upon a set of circumstances which may or may not arise at some
future date.
However, it is not clear from the judgment which view the trial judge took. That being so, this court is
not in a position to dispose of the case finally. In my opinion the appeal should be allowed. The decision of
the trial judge should be set aside and the case should go back to the court below for findings as to the date
when the licence was determined and whether as from that date the defendants, at the commencement of
the action, had had a reasonable time in which to remove themselves and their belongings from the land. If
these questions are decided in the plaintiffs favour they should have judgment on both their claims for the
trespass and for an injunction with respect to the land other than the six acres under rice cultivation, and

there should be an enquiry as to damages, the period of the trespass being from the expiration of the
reasonable notice until the commencement of the proceedings; otherwise, the action should be dismissed.
The appellants were allowed to amend their grounds of appeal upon terms that they should pay the
costs of this appeal in any event, and an order should be made accordingly. The costs of the court below
should abide the result of the new trial.
HALLINAN CJ. I concur.
MARNAN J. I concur.
Appeal allowed. New trial ordered.

(1959) 1 WIR 547

Demerara Company Ltd v Burnett

FEDERAL SUPREME COURTCIVIL APPELLATE JURISDICTION
HALLINAN CJ, LEWIS AND MARNAN JJ
23 NOVEMBER, 2 DECEMBER 1959

Workmens compensation Accident arising out of and in the course of employment Effect of the proviso
in the Ordinance which relates to a pre-existing diseased condition of the workman Section 3 (1) of the
Workmens Compensation (Consolidated) Ordinance, 1952 [BG].
A workman, who was engaged in tilling his employers land with an agricultural fork, was found lying on the
ground with the fork nearby and a substantial portion of the soil freshly tilled. He died in hospital the next
morning. The medical evidence established that death was due to the bursting of a blood

547
vessel in the brain. The workman was suffering from arteriosclerosis and strenuous effort, such as forking
the land, could have caused bursting of the blood vessel in a person suffering from this disease.
Held: that the appeal should be allowed, by Hallinan CJ, and Marnan J, on the ground that any exertion
while working for an employer which contributes in a material degree to an injury suffered by a workman is
an accident arising out of and in the course of employment but in the circumstances where the mishap and
the injury are the same event, proviso (c) to s 3 (1) of the Ordinance enables the employer to escape liability
if he proves that a preexisting diseased condition has also contributed in a material degree towards the
injury suffered by the workman, and by Lewis J, on the ground that proviso (c) to s 3 (1) excepts from liability
a case where the mishap, though brought on by the workwhere there was no unusual exertion or untoward
eventwould not have happened if the workman had not the pre-existing diseased condition.
Appeal allowed.
Cases referred to
McFarlane v Hutton Brothers (Stevedores), Ltd (1926) 96 LJKB 357, 136 LT 547, 20 BWCC 222, CA, Digest
Supp
Clover, Clayton & Co, Ltd v Hughes [1910] AC 242, 79 LJKB 470, 102 LT 340, 26 TLR 359, 3 BWCC 275,
sub nom Hughes v Clover, Clayton & Co, 54 Sol Jo 374, HL, 34 Digest 273, 2316
Partridge Jones & John Paton, Ltd v James [1933] AC 501, 102 LJKB 760, 148 LT 553, 49 TLR 233, 77 Sol
Jo 100, sub nom James v Partridge Jones & John Paton, Ltd, 26 BWCC 277, HL, Digest Supp
Jagnarine v Bookers Sugar Estates, Ltd [1956] LRBG 136
Appeal
Appeal by the employer from the judgment of the Supreme Court of British Guiana (Appellate Division
Holder CJ, and Stoby J) dated 13 December 1958, affirming the decision of the magistrate awarding
workmans compensation. The facts appear in the judgment of Hallinan CJ.
Elliott (instructed by J E DeFreitas) for the appellants
Singh (instructed by R A Gunraj) for the respondent

HALLINAN CJ. The applicant-respondent in this case was a dependent of the deceased workman Burnett
who was her husband and she claims compensation under the Workmens Compensation (Consolidation)
Ordinance, 1952 [BG], on the ground that Burnetts death was caused by an accident arising out of and in
the course of his employment by the appellant Company. There is no dispute about the facts. Burnett left
his home one morning as an employee of the appellants to work on their estate. He was seen using an
agricultural fork tilling the soil. When he failed to return home at the accustomed hour, two friends went to
look for him; they found him lying on the ground breathing heavily with the fork nearby and a substantial
portion of the soil appeared to be freshly tilled. He died in hospital the next morning. The medical evidence
established that death was due to the bursting of a blood vessel in the brain. The deceased was suffering
from arteriosclerosis and strenuous effort such as forking the land could have caused bursting of the blood
vessel in a person suffering from this disease.
On these facts the magistrate and (upon appeal) the Full Court have found that the appellants as
employers are liable under the Ordinance of 1952.
Assuming that death was due to an accident, the appellants admit that such accident arose out of and
in the course of their employment. However, it is submitted for the appellants that the case falls within para
(c) of the second proviso to s 3 (1) of the Ordinance of 1952 and that in consequence the appellants are not
liable to pay the compensation provided by the Ordinance.

548
Section 3 (1) of the Ordinance begins in almost the same way as s 1 of the Workmens Compensation
Act, 1925 [UK]. It reads:
3. (1) If in any employment a workman suffers personal injury by accident arising out of and in the
course of such employment his employer shall be liable to pay compensation in accordance with the
provisions of this Ordinance.
Then follow two provisos, the second of which reads:
Provided further that the employer shall not be so liable (under this Ordinance) for such
compensation should
****
(c)it be proved that the accident would not have occurred, or in so far as the incapacity or death
would not have been caused, but for a pre-existing diseased condition of the workman;
Now, but for the provisions of the second proviso, it is clear on the English authorities that the
appellants would be liable. The Full Court considered the case decided under the corresponding section of
the English Act should be applied and relied on the case of McFarlane v Hutton Brothers (Stevedores) Ltd
((1926), 96 LJKB 357, 136 LT 547, 20 BWCC 222, CA, Digest Supp), but this case does no more than follow
Clover, Clayton & Co, Ltd v Hughes ([1910] AC 242, 79 LJKB 470, 102 LT 340, 26 TLR 359, 3 BWCC 275,
sub nom Hughes v Clover, Clayton & Co, 54 Sol Jo 374, HL, 34 Digest 273, 2316). In Clovers , Clayton &
Co, Ltd v Hughes, case ([1910] AC 242, 79 LJKB 470, 102 LT 340, 26 TLR 359, 3 BWCC 275, sub nom
Hughes v Clover, Clayton & Co, 54 Sol Jo 374, HL, 34 Digest 273, 2316), a workman suffering from serious
aneurism was employed in tightening a nut by a spanner when he suddenly fell down dead from rupture of
the aneurism. The House of Lords (Lords Atkinson and Shaw Of Dunfermline dissenting) held there was
evidence to support a finding that it was a case of personal injury by accident arising out of and in the course
of their employment.
It is not, I think, an exaggeration to say that the House of Lords in this case in order to assist injured
workmen and their dependents stretched the meaning of the word accident somewhat beyond its ordinary
meaning: Lord Loreburn LC, set out the findings of fact by the arbitrator:
This man died from the rupture of an aneurism, and the death was caused by a strain arising out
of the ordinary work of the deceased operating upon a condition of body which was such as to render
the strain fatal. Again, the aneurism was in such an advanced condition that it might have burst while
the man was asleep, and very slight exertion, or strain, would have been sufficient to bring about a
rupture.
Lord Loreburn ([1910] AC at p 247) states:
An accident arises out of the employment when the required exertion producing the accident is too
great for the man undertaking the work, whatever the degree of exertion or the condition of health.

These words were cited with approval by Lord Buckmaster in the late case of Partridge Jones & John Paton,
Ltd v James ([1933] AC 501, 102 LJKB 760, 148 LT 553, 49 TLR 233, 77 Sol Jo 100, sub nom James v
Partridge Jones & John Paton Ltd, 26 BWCC 277, HL, Digest Supp), where a workman while in the normal
course of his work and while suffering from a heart disease died. The decision of the majority in the House
of Lords in Clovers , Clayton & Co, Ltd v Hughes, case ([1910] AC 242, 79 LJKB 470, 102 LT 340, 26 TLR
359, 3 BWCC 275, sub nom Hughes v Clover, Clayton & Co, 54 Sol Jo 374, HL, 34 Digest 273, 2316) has
resulted in this curious position: if a man suffering from a serious aneurism ruptures the aneurism going
upstairs in his own house, no one would say his death was due to an accidentit was the aneurism that
killed him; but if he is (an employee) tightening a nut with a spanner and the aneurism bursts, his death was,
for the purposes of the Workmens Compensation Act [UK], an accident. Lord Atkinson in his dissenting
judgment ([1910] AC at p 254) has this to say:
The death of the deceased was, it appears to me, no more an accident than if, had he been a
butler, he had died walking slowly up the stairs of the house in which he served, or had he been a
coachman, he had died while slowly mounting to his box. It may possibly be that it would be better, in

549
the interest of workmen, that they should be entitled to compensation for all injuries which arise out
of and in the course of their employment however caused, though that is far from clear, since it might
result in depriving of employment all who were in any way unsound or past their prime.
Lord Shaw Of Dunfermline in his dissenting judgment (ibid, at p 257) put bluntly how he would decide the
facts apart from authority:
. . . on these facts, I am of opinion that this workman did not die owing to injury by accident, but
died of heart disease. There was nothing unusual or abnormal in the work, no strain more than
ordinary was imposed or involved, no occurrence took place to intercept or even disturb the work or
the workman; all that can be said is that, being at work, and diseased, he died. His death was caused,
in my view, not by any injury by accident, but simply by the disease which he unhappily suffered.
Lord Shaw Of Dunfermline concludes his judgment by stating that the decision of the House of Lords in
Clovers , Clayton & Co, Ltd v Hughes, case ([1910] AC 242, 79 LJKB 470, 102 LT 340, 26 TLR 359, 3
BWCC 275, sub nom Hughes v Clover, Clayton & Co, 54 Sol Jo 374, HL, 34 Digest 273, 2316) might
prejudice the very class of worker which that House was trying to assist. He states (ibid, at p 261):
Nor do I think it altogether without a bearing on the sound construction of the statute, that if a
different interpretation be put upon the words cited, then a new peril will have been introduced into the
lives of many workers who, not withstanding debility and chronic disease, are most anxious and willing
to devote their remaining powers to earning an independent livelihood. Should such persons be held
to carry with them into and upon employment the serious additional liability alluded to, employment
may become for such persons, often the most needy and deserving of the population, more difficult to
obtain.
The Full Court in the present case considered whether para (c) of the second proviso to s 3 (1)
exempted the appellants from liability, but found as follows:
We agree with Crane On Workmens Compensation when he says at p 125 The meaning of this
exception from liability is that the employer is not liable to pay compensation if the accident or the
resulting death of incapacity was due solely to disease.
I am unable to see how para (c) of the second proviso can be so interpreted. It is a clear departure
from the English statute and it is most probable that the Legislature had in mind the judgments of Lords
Atkinson and Shaw Of Dunfermline in Clovers, Clayton & Co, Ltd v Hughes, [1910] AC 242, 79 LJKB 470,
102 LT 340, 26 TLR 359, 3 BWCC 275, sub nom Hughes v Clover, Clayton & Co, 54 Sol Jo 374, HL, 34
Digest 273, 2316). It is, I think, significant that para (c) uses the phraseology (although in a contrary sense)
of Lord Hanworth MR, in McFarlane v Hutton Brothers (Stevedores) Ltd ((1926), 96 LJKB 357, 136 LT 547,
20 BWCC 222, CA, Digest Supp) (20 BWCC at p 228):
That seems to indicate that you have to ask yourselves two questions: Did the man die from the
disease alone or did the work which he was doing help in a material degree in the sense that it brought
on the mishap which it may be would not have happened if he had not the diseased condition, but
owing to the diseased condition and the work that he was doing it was set in motion?

If para. (c) to the second proviso means what the learned author and the Full Court say it means, then it
were only necessary to reproduce Lord Hanworths first question and enact the employer shall not be liable
if it be proved that the workman died from disease alone; but surely such a provision is unnecessary for
disease is not an accident and an employer must succeed without any such provision if he shows that death
was not by accident. The Legislature in para (c) appears to have in mind Lord Hanworths second question
as a statement but reverses it and provides expressly that if this mishap would not have happened had the
workman not had the diseased condition, then the employer is not liable.

550
I have no doubt that para (c) provides an employer with a defence against liability which was not open
to him under the corresponding English legislation. What is this defence? We must, I think, accept the
House of Lords interpretation that any exertion while working for an employer which contributes in a
material degree (to use Lord Hanworths phrase in McFarlanes v Hutton Brothers (Stevedores), Ltd case
((1926), 96 LJKB 357, 136 LT 547, 20 BWCC 222, CA, Digest Supp)) to an injury suffered by a workman is
an accident arising out of and in the course of employment. In these circumstances the mishap and the
injury are the same event. It is convenient to refer to this interpretation as accident in its extended
meaning. Where then an accident in its extended meaning has occurred proviso (c) enables the employer
to escape liability if he proves that a pre-existing diseased condition has also contributed in a material
degree towards the injury suffered by the workman. The burden of proving this is on the employer.
I am not prepared to say that these are the only circumstances in which para (c) may provide a defence
but I do not think that an employer can rely on this paragraph to escape liability in a case where the accident
is an external mishap or untoward event unrelated to the pre-existing condition as in the case of Jagnarine v
Bookers Sugar Estates Ltd, ([1956] LRBG 136), where a workmans foot slipped while engaged in his
employers work, and this mishap aggravated a pre-existing hernia. There the accident, the slipping of the
foot, would have occurred even if the workman had not been suffering from hernia. In such circumstances, I
do not think that para (c) applies. It might be argued that the words or in so far as the incapacity or death
would not have been caused but for the pre-existing diseased condition . . . might help the employer, since
the pre-existing hernia materially contributes to the incapacity of the aggravated hernia. But the words or in
so far as the incapacity or death would not have been caused are so ungrammatical as to be meaningless;
since the meaning of para (c) is plain without them, there is no duty on this court to try and make sense out
of nonsense.
A more difficult case to determine liability would be where there was an external mishap or untoward
event but it was related to the pre-existing condition as where a workman through a diseased condition of
the eye or the ear is injured by a collision (an external mishap) in the course of his employment. It might
well be argued that an employer in such a case is, by virtue of para (c), not liable.
In the present case, the bursting of the blood vessel in the deceaseds brain was only an accident in
the extended sense and under para (c) the employer is not liable if the pre-existing diseased condition of
the deceased in a material degree contributed to such accident. Beyond all doubt his arteriosclerosis did so
contribute and in my view the employer is not liable. I think this appeal should be allowed. The order of the
magistrate should be set aside and the respondents claim dismissed.
LEWIS J. I have had the privilege of reading the judgment which has just been delivered by the Chief
Justice and I agree with the conclusion which he has reached in this case and the order proposed. I
propose to add a few words because I find that there is a very narrow difference between our respective
views as to the extent to which the proviso (c) relieves the employer from liability under the Workmens
Compensation Ordinance [BG].
I think the result of the English cases of Clover, Clayton & Co Ltd v Hughes ([1910] AC 242, 79 LJKB
470, 102 LT 340, 26 TLR 359, 3 BWCC 275, sub nom Hughes v Clover, Clayton & Co, 54 Sol Jo 374, HL, 34
Digest 273, 2316), McFarlane v Hutton Brothers (Stevedores) Ltd ((1926), 96 LJKB 357, 136 LT 547, 20
BWCC 222, CA, Digest Supp) and Partridge Jones & John Paton, Ltd v James ([1933] AC 501, 102 LJKB
760, 148 LT 553, 49 TLR 233, 77 Sol Jo 100, sub nom James v Partridge Jones & John Paton Ltd, 26
BWCC 277, HL, Digest Supp) on the question whether injury by accident arose out of the employment may
be stated thus: if it was proved that the injury resulted from the combined effect of the work and the diseased
condition of the workman, so that the work was in a material degree a contributing factor, then the injury
arose out of the employment, notwithstanding

551
that no undue exertion or strain had occurred or that the workman was merely doing his ordinary work
in the ordinary way, and that were it not for the pre-existing diseased condition the injury might not have
resulted. But if it was not proved that the work contributed in any way to set in motion the mishap, so that
the injury resulted from the diseased condition alone, then it did not arise out of the employment.
I consider that proviso (c) to s 3 (1) excepts from the ambit of the main clausewhich prescribes the
liability for compensationa case which in England had been held to fall within it, namely, the case where the
mishap, though brought on by the work, would not have happened if the workman had not the pre-existing

diseased condition. In my view, where it is proved that at the time of the accident the workman was
suffering from a diseased condition of the body, and there is no evidence of any unusual exertion, or of any
untoward event such as a slip, or wrench, or sudden jerk, but the injury occurred or the incapacity or death
was caused merely as a result of the effect which the performance of his ordinary work in the ordinary way
had upon the diseased condition, then compensation is not payable. I do not think that the proviso applies
where the mishap is set in motion by exertion of a degree unusual in the workmans employment, for in my
opinion such exertion is similar in character to an untoward event.
Applying the foregoing construction to the facts of the case of Jagnarine v Bookers Sugar Estates Ltd,
([1956] LRBG 136), to which counsel for the respondent referred us, it seems clear that that case was rightly
decided, since though there was a pre-existing hernia, its aggravation was due to the slipping of the
workmans foot, an untoward event, and not merely to the ordinary work which he was doing.
In the instant case, there is no evidence of any unusual exertion or any untoward event. The forking of
the land, which on the medical evidence contributed to the bursting of the blood vessel and resultant death,
was the very work which the workman was employed to do, and when he was seen, he was doing it in the
ordinary way. Had it not been for his pre-existing arteriosclerosis the work which he was thus doing would
not have brought about the injury. I am of opinion that the circumstances fall within the proviso and that the
employers are not liable for compensation. The appeal should therefore be allowed.
MARNAN J. I too have read the judgments which have just been delivered, and I agree that this appeal
should be allowed. In so far as there is a slight difference of opinion as to the extent to which the proviso (c)
relieves the employer from liability, I think I should add that I fully concur with the views expressed by my
Lord the Chief Justice. In my opinion, the proviso imposes a burden of proof which the employer may often
find difficult to discharge, but if he does so succeed he is relieved from liability.
Appeal allowed.