S.C. grant; and of course it is elementary to say that there cannot be two original grants of probate of the same will. Five executors having already been granted probate, it is difficult to see how this court can make any further grant. Our own Supreme Court Rules make no provision regarding the number of executors to whom probate can be granted. We are therefore by our O. LII, r.3 thrown back on the English practice in force on January 1st, 1946, and that is laid down in s.160 of the Supreme Court of Judicature (Consolidation) Act, 1925, which provides that probate may not be granted to more than four persons in regard to the same estate. The word actually used in the section is "property" but in In re Holland (1) it was held that the word "property" included the whole of a testator's estate. The corollary to this of course is that where probate has been granted to four executors, any remaining executors can take up their powers only as vacancies occur among the acting executors. No vacancy among the acting executors having been notified to this court, I fail to see therefore how this court can at present make any further grant, even if it had itself made the original grant. The Gold Coast apparently has no limitation on the number of executors to whom probate may be granted. Mr. Cole further submitted that the Supreme Court of the Gold Coast is a court of foreign jurisdiction, and said: "My client wishes to deal with the testator's property in Sierra Leone. A Gold Coast probate can have no effect here. Therefore I must ask for a fresh grant." The proposition that a Gold Coast probate has no effect in Sierra Leone is correct, but that he must ask for a fresh grant is quite wrong. Indeed it is because a Gold Coast probate per se cannot affect property in Sierra Leone that the Probates (British and Colonial) Recognition Ordinance (cap. 182) was enacted. The position in this application is in my view clearly and completely covered by s.3 of that Ordinance which, applied to this case, in effect says that the Supreme Court of the Gold Coast having granted probate in respect of the estate of the late Ezekiel Festus O'Reilly, in order to make that grant effective as regards any estate left by the deceased in Sierra Leone the grant must be sealed with the seal of the Supreme Court of Sierra Leone; and I hold that that is what must be done in this case. The applicant will of course have first to exercise the power reserved to him under the original grant. Mr. Cole made one further submission with which I think I ought to deal. He referred me to the Probates (British and Colonial) Recognition Rules (cap. 182) and the form in Schedule A thereof, and he suggested that it was clear that the question of resealing applied only to personalty. I reject this submission and I do so for this reason. These Rules were enacted in 1915 when stamp duty on probate was payable only in respect of personalty. Indeed it was not until 1931, by the Stamp Duty (No. 2) Order in Council of that year, that it became payable in respect of realty as well. As s.4 of the Probates (British and Colonial) Recognition Ordinance provides that before sealing a probate the court must be satisfied that "Probate duty has been paid in respect of so much (if any) of the estate as is liable to Probate duty in the Colony and Protectorate," and as realty was not liable at the time to any duty, it is clear why the sole mention in the Rules is of personalty. The application for probate in this case in my view was rightly refused, and I uphold the Registrar's decision. The Registrar must have his taxed costs. Application dismissed. 20 25 30 35 40 WRAY v. COMMISSIONER OF POLICE SUPREME COURT (Beoku-Betts, Ag.C.J.): October 9th, 1950 (Cr. App. No. 29/50) [1] Liquor-offences-keeping open licensed premises during prohibited hours-elements of offence-intoxicating liquor must be available to outsiders during prohibited hours: In order to constitute the offence of keeping open licensed premises for the sale of intoxicating liquor during prohibited hours there must be a keeping open of the premises to enable people to come in from outside to procure intoxicating liquor, or to get it supplied to them when outside (page 63, lines 19-30). The appellant was charged in a police magistrate's court with keeping licensed premises open after closing hours contrary to s.26(2) of the Liquor Licence Ordinance (cap. 121). Several persons were found in the appellant's licensed premises during the hours of closing. No evidence was led to show whether the drinks being consumed by such persons were intoxicating or not. The appellant was convicted, and appealed to the Supreme Court on the ground that the offence charged could not be constituted unless it was established that intoxicating liquor was available during prohibited hours. Case referred to: S.C. (1) Commissioner of Police v. Roberts, [1904] 1 K.B. 369; (1903), 20 T.L.R. 105. Dobbs for the appellant; Benka-Coker, Ag. Sol.-Gen., for the respondent. BEOKU-BETTS, Ag.C.J.: This is an appeal against the decision of the Acting Police Magistrate in Court No. 3 on three grounds. Only one ground need be considered. It is that the decision is against the weight of the evidence. The charge was that of keeping liquor-licensed premises open after closing hours. The learned trial magistrate found that two Europeans and others were found in a part of the defendant's bar after closing hours, and in the glasses of some of those persons were found what the magistrate described as “drinks," and that some of the occupants of the bar were sipping drinks. There is no evidence to show the nature of the "drinks," i.e., whether they were intoxicating or not. In a charge such as the one with which the appellant was charged it is not sufficient to show that there were some "drinks" available. It is necessary that the prosecution should prove that intoxicating liquor was available within prohibited hours. In the case of Commissioner of Police v. Roberts (1), it was decided that in order to constitute the offence of keeping open licensed premises for the sale of intoxicating liquor during prohibited hours there must be a keeping open of the premises in the sense that people can come in from the outside to procure intoxicating liquor, or can get it supplied to them when outside. The learned magistrate neglected to consider the important requirement that there should be proof of intoxicating liquor supplied. In the circumstances, I have no alternative but to set aside the conviction and sentence and to order that the fine, if paid, be refunded to the appellant. Appeal allowed. 35 40 5 10 15 20 25 30 35 J.P. HOLMEN LIMITED v. KATTY SUPREME COURT (Kingsley, J.): November 2nd, 1950 [1] Employment-safety—claims under Workmen's Compensation Ordinance (cap. 268)—liability in case of workmen employed by contractors -employer liable only when work undertaken in or for his usual business-existence of regular practice in employer's kind of business irrelevant: It is not everything done in the interest of an employer's business which is work undertaken in the course of or for the purposes of his business so as to render him liable to pay compensation under s. 23 (1) of the Workmen's Compensation Ordinance (cap. 268) to a person employed by a contractor engaged to work on his behalf: the question of liability is to be solved by considering whether the work is that usually undertaken by the particular employer in question, and not by considering whether there is a regular practice in that kind of business governing such work (page 67, line 25-page 68, line 17). The respondent brought an action against the appellants in a magistrate's court to recover compensation under s.23(1) of the Workmen's Compensation Order (cap. 268). The appellants were shipping agents who owned a number of barges used for transport purposes in the harbour vicinity. When two of their barges became unserviceable, they engaged a contractor to dismantle them. A workman employed by the contractor suffered injury in the course of this work, and compensation was claimed in respect of this injury under s.23(1) of the Workmen's Compensation Ordinance. The trial magistrate found that the dismantling of barges was work done in the course of the appellant's business, though no evidence was led to show that they normally did it or that it was the normal practice in their business to do it. On appeal, the Supreme Court considered the circumstances in which an employer could be held liable for an injury to a workman employed by a contractor, and whether they pertained in the present case. 40 Cases referred to: (1) Bush v. Hawes, [1902] 1 K.B. 216; (1901), 85 L.T. 507, applied. (2) Dittmar v. Wilson, Sons & Co., [1909] 1 K.B. 389; (1908), 100 L.T. 212, distinguished. S.C. (3) Skates v. Jones & Co., [1910] 2 K.B. 903; (1910), 26 T.L.R. 643, dicta of Cozens-Hardy, M.R. applied. (4) Spiers v. Elderslie Steamship Co. Ltd., [1909] S.C. 1259; (1909), 46 Sc. L.R. 893, applied. Legislation construed: Workmen's Compensation Ordinance (Laws of Sierra Leone, 1946, cap. 268), s.23(1): "Where any person (in this section referred to as the principal), in the course of or for the purposes of his trade or business, contracts with any other person otherwise than as a tributer (which other person is in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this Ordinance which he would have been liable to pay if that workman had been immediately employed by him. Dobbs for the appellants; KINGSLEY, J.: The short but important point in this appeal is whether the work of dismantling barges was work undertaken by the appellants within the meaning of s.23(1) of the Workmen's Compensation Ordinance (cap. 268). This section is an exact replica of s.6(1) of the English Workmen's Compensation Act of 1925 and so in coming to my decision I have been on safe ground in examining the various cases referred to in Willis's Workmen's Compensation, 31st ed. (1938). The relevant passage in the learned magistrate's judgment reads: "In the first place, was the work of dismantling the barges undertaken by the defendant company in the course of or for the purposes of their trade or business? It is in evidence that the defendant company are shipping agents; as such they would normally possess barges and small craft for the transport of cargo from ship to shore, and vice versa." So far the learned magistrate was perfectly correct. Though the point was not brought out as clearly as it ought to have been by learned counsel, I think it a reasonable inference from the evidence that the appellants do in fact own their own barges which they use for transport purposes in the harbour vicinity, and possibly a little further afield also. But the magistrate then went on: "And where a barge is unserviceable, they would normally 3 S.L.-3 |