Norwich Union Life Insurance Society v Dobbs (2)

• Jurisdiction: South Africa
• Citation: 1912 AD 468

Norwich Union Life Insurance Society Appellant v Dobbs Respondent (2)
1912 AD 468

1912 AD p468

Citation	1912 AD 468
Court	Appellate Division, Bloemfontein
Judge	Coram Innes ACJ, Solomon J, Maasdorp JP, Laurence AJP and J De Villiers JP
Heard	September 10, 1912
Judgment	September 11, 1912

Flynote : Sleutelwoorde

Court — Jurisdiction — Application for new trial — Jury Act 23 of 1891 (C) secs. 36, 39 — South Africa Act, sec. 103.

Headnote : Kopnota

The Jury Act 23 of 1891 (C) provides that any party to a case tried by jury who shall be dissatisfied with the finding of the jury may apply to the Supreme Court on notion for a new trial on any of certain specified grounds, and that upon a motion for a new trial the Court may give judgment or may direct such issues to be tried or determined and such accounts to be taken and made as it may think fit: - Held, that the authority of the Court under the Act embraced all the powers of an appellate tribunal and that an application for a new trial was an appeal within the meaning of sec. 103 of the SA Act, and must, therefore, be brought in the Appellate Division.

The decision of the Cape Provincial Division in Norwich Union, etc. v Dobbs (1912 CPD 571) affirmed.

Case Information

Appeal from them decision of the Cape Provincial Division (BUCHANAN, J., LANGE, J., and McGREGOR, A.J.) in Norwich Union, etc., Society v Dobbs (1912 CPD 571).

This appeal involved the question whether the Provincial Division or the Appellate Division was the proper Court in which to apply to have the judgment in a jury trial set aside.

[A further appeal in which the Appellate Division was asked to set aside the judgment in the jury trial in question is reported as Norwich Union, etc., Society v Dobbs (3) at p. 484 below.]

1912 AD p469

Action had been brought in the Cape Provincial Division on May 9, 10, and 13 by Dobbs before SEARLE, J., and a special jury, in which the jury by a majority awarded him £300 damages for breach of contract. The appellant company then applied to a three judge Court of the Provincial Division to set aside the judgment of 13th May, and to enter judgment for defendant, or alternatively for a new trial on certain specified grounds. The Court decided on June 25 that it had no jurisdiction to hear the application under the provisions of Act 23 of 1891 (C.) and that such application must be made to the Appellate Division.

The company now appealed from the decision of June 25.

J. A. Greer (with him D. M. Buchanan), for the appellant: The objection to the jurisdiction should have been taken in limime in the Court below. It is a question of procedure, and it is now too late to object. See Oulton v Radcliffe (L.R., 9 C.P. 189) and Yearly Practice for 1911 (vol. I, p. 95).

The main question is whether a motion for a new trial is an appeal within the meaning of sec. 103 of the SA Act. Such motions are provided for by the Jury Act 23 of 1891, secs. 34 et seq and sec. 41 contemplates an appeal from them. In 1891 the Supreme Court whose quorum was 2 (Chart of Justice, sec. 33) had been given appellate jurisdiction only from Circuit, Eastern Districts, and High Court, and there was no appellate jurisdiction from itself until Act 35 of 1904 (C.) sec. 2. Its quorum for appellate purposes was 3 by Act 17 of 1886 (C.) and by Act 35 of 1896, sec. 20. The Jury Act contemplated an application to a 2-judge Court.

[SOLOMON, J.: You are begging the question which is whether such application is an appeal or not.]

If it was intended to be an appeal it would have been called an appeal.

A jury is in the nature of a special referee sitting to assess damages. There is no appeal from the assessment of damages. See Wynne Finch v Chaytor (1903, 2 Ch.D. 475) confirmed in Fraser v Fraser (1905, 1 K.B. 368) and overruling Dagrish v Barton (81 L.T.R. 551)

1912 AD p470

and Stroud's Jud. Diet., vol. I., p. 98-99. In England it required Finlay's Act (53 and 54 Vict c. 44) to give the Court of Appeal jurisdiction in such cases. Before that they were heard by Divisional Courts as matters of original jurisdiction. See Miller v Toulmin (17 Q.B.D. 603), Yearly Practice, 1911 (vol. 2, p. 1360), Allcock v Hall (1891, 1 Q.B. 444), Hecksher v Crosley (1891, 1 Q.B.D. 224). By sec. 98 of the SA Act the C.P. Division is the representative of the Cape Supreme Court, and any powers not taken away remain. This may be a casus omissus in the SA Act like the one provided for by Act 1 of 1911 and discussed in R. v Mpeta (supra p. 414). If so, the power would remain in the Provincial Division. In the analogous case of an appeal from a criminal jury the appeal is to the Provincial Division (S.A. Act sec. 103). The statement at the end of Southern Life Association v Trollip (17 C.T.R. 1016) is obiter. The jurisdiction is sui generis. It is not fundamentally of an appellate nature.

M....