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Colonial Cases

Rainy v. Bravo, 1872


Rainy v. Bravo

Judicial Committee of the Privy Council
11 June 1872
Source: The Times, 12 June, 1872

Present - Sir J. Colville, Sir Montague Smith, and Sir R. Collier.
  Mr. Rainy, the appellant, a barrister of the Inner Temple, had practised as an advocate and attorney of the Supreme Court and the police-court of Sierra Leone, and brought an action against the respondent, the police magistrate of the settlement and commander of Her Majesty's troops. The libel was contained in a letter written by the defendant to the clerk of the police-court, in which he told the clerk to tell a client of Mr. Rainy's that he (the magistrate) had prohibited Mr. Rainy from practising in the police-court, and there was no necessity for a lawyer; but if he required one to employ a person he mentioned. "who was a clever lawyer, and, what is more, an honest man."
  The case was tried in the Supreme Court, where the Judge presided without a jury.  The defendant pleaded "Not Guilty," but did not appear on the trial.  The Judge adjourned his decision sine die, and afterwards found for the defendant. The letter had been destroyed by the defendant, and the plaintiff called witnesses to prove the contents, as also the conduct of the defendant towards him, who had refused to hear him in his court until he had apologized for his rudeness. Mr. Rainy denied the imputation of rudeness, and alleged that he had suffered in a pecuniary point by the defendant's conduct. He had obtained a rule for a new trial, and the Judge had discharged the same, on which he appealed to Her Majesty. The letter containing the libel was read in the police-court.
  Mr. Rainy, the appellant, in person urged upon their Lordships that the Judge could not reject the evidence as to the proof of the libel after he had admitted it on the trial. He put forward other objections.
  Mr. A. L. Smith was heard on the part of the respondent.
  Their Lordships deferred judgment.

Source: The Times, 13 June, 17872

(Present - Sir J. Colville, Sir M. Smith, and Sir R. Collier.)
  This case, mentioned in The Times, was decided today.  It was an appeal from Sierra Leone, in an action of libel, brought by Mr. Rainy, a member of the English Bar, who had practised in the settlement, against the respondent, who was magistrate of the police-court of Sierra Leone. The case was tried without a jury, and the Judge allowed the evidence of three witnesses to be taken as to the contents of a letter written by the defendant to the clerk of the court, reflecting on Mr. Rainy, and requesting that it should be read in court. After an adjournment the Judge rejected the evidence of the witnesses and found for the defendant. Mr. Rainy then obtained a rule for a new trial, and on its being discharged he appealed to the Queen.
  Mr. Rainy conducted his own case and Mr. A. L. Smith appeared for the respondent.
  Sir M. Smith, in giving judgment, referred to the evidence given, and said the Judge had held that the libel was not proved, as he had rejected the evidence of the witnesses on the contents of the letter, in which the appellant had obtained a rule for a new trial on the ground that the libel had been proved; and if there was a variance in the declaration and evidence he should have been allowed to amend. His Lordship, after showing the variance in the declaration and the words written, said the Chief Justice who had tried the case at Sierra Leone held that the words must be proved.  The Chief Justice seemed to have had a right apprehension of the law, but had misapplied it in this case. Their Lordships were of opinion that the witnesses had given, as far as they could, the very words of the libel, and therefore they were disposed to come to the conclusion that the Judge should not have rejected the evidence.
  Assuming that the evidence had been improperly rejected, their Lordships were still of opinion that there was a fatal variance in the declaration and the evidence. The words according to the evidence were not set out ibn the declaration.  Their Lordships had, in the next place, to consider the appellant's application to amend the declaration. The appellant should at the end of his case applied to the Judge to amend, as it was then apparent to him that there was a variance in the declaration and his witnesses. That course, however, the appellant did not take, and took the chance of the decision being in his favour, and afterwards when the Judge had given his judgment and he found it was against him he applied for leave to amend and it was refused. The Judge offered him a nonsuit, but the appellant, who was his own advocate, did not advise himself to accept it, and the verdict was against him.
  The question was whether the tribunal should interfere with the discretion of a learned Judge who had refused to allow an amendment. In this case there was a circumstance which had disposed their Lordships to allow an amendment on terms, on the ground that the Judge who had shut out the evidence had allowed his mind to be influenced in refusing to allow an amendment of the declaration. Probably, had the learned Judge taken the same view of the evidence as their Lordships had done, he would have allowed an amendment.
  Their Lordships were disposed to allow the appellant to try the case if he should think fit, but only on terms. Their Lordships would grant a new trial on the payment of all costs, and therefore advise Her Majesty that the order of the learned Judge should be varied on the payment of all costs and the appellant begin de novo. Their Lordships were of opinion that the costs of the appeal should be borne by the appellant, because he did not apply at the proper time to amend, and would not consent to a nonsuit.  It would, however, be for the parties to consider whether it would not be better to enter a stet processus, to put an end to the proceedings, and each pay their own costs. Their Lordships would delay their recommendation to Her Majesty to allow the parties to consider the suggestion they had thrown out.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School