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AMOAH ABABIO AND ANOTHER
V.
JOHN EDMUND TURKSON
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
3RD DAY OF MARCH, 1950
2PLR/1950/17 (WACA)
OTHER CITATION(S)
2PLR/1950/17 (WACA)
(1950) XIII WACA PP. 35-36
LEX (1950) – XIII WACA 35-36
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
LEWEY, J.A.
SMITH, J.
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BETWEEN:
1. AMOAH ABABIO, OHENE OF ASAMANKESE
2. BAFO KOFI BOMPON, ODIKRO OF AKWATIA – Defendants-Respondents-Appellants
AND
JOHN EDMUND TURKSON – Plaintiff-Appellants-Respondent
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REPRESENTATION
K. Adumua-Bossman — for Defendants (Applicants)
A. G. Heward-Mills — for Plaintiff (Opposer)
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
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PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT AND ORDER:- Interlocutory or final judgment – Test to be applied
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CASE SUMMARY
The defendants were the applicants.
This was an application to vary an order refusing unconditional leave to appeal to the Privy Council on the grounds that the judgment appealed against was an interlocutory one to the extent that the successful plaintiff could not proceed to execution until the trial Court determined the actual amount payable to the applicant.
This Court held that the applicant was entitled to the amount which ought to be paid to him under his claim and it was only left to the Court below to work that out by arithmetical calculation.
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DECISION(S) OF THE WEST AFRICAN CCOURT OF APPEAL
Held (granting the Application) that:
1. A final judgment does not mean the last judgment, but the judgment determining rights finally, such as a preliminary judgment establishing the liability to account and directing accounts to be taken.
2. This Court had decided that the applicant was entitled to an account, and that all the Court below had to do was to ascertain the amount payable. The judgment was, therefore, a final judgment and unconditional leave to appeal was granted.
Cases referred to:
(1) Light v. West, 134 L.T.R. 693.
(2) Krakue v. Mensah, F.C. 1926-29, 277.
(3) Ex parte Moore in re Faithful (1885), 14 Q.B.D. 627.
(4) Rahimbhoy v. Turner, Woodroffe & Amser Ali’s Civil Procedure in British, India, page 444.
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MAIN JUDGMENT
The following Judgment was delivered:
BLACKALL, P.
This is an application under articles 3 and 7 of the West African (Appeal to Privy Council) Order in Council, 1930, to vary an order made by Smith, J., on the 21st of April, 1949, in which he refused conditional leave to appeal on the ground that the judgment of this Court was an interlocutory one to the extent that the successful plaintiff could not proceed to execution until the trial Court determined the actual amount payable to the appellant.
In arguing before my brother Smith, Mr. Heward-Mills relied among others on the case of Light v. West (1), in which it was held that an order might be in part final and part interlocutory, and that until the costs which the Judge had awarded were taxed, the Judge could not give final judgment. But that decision turned on the proviso to section 11 of the County Court Act, 1919, and in my view is distinguishable from the present one. Krakue v. Mensah (2) was also cited. In that case it was held that a finding that the plaintiff was entitled to a certain commission followed an order for the plaintiff “for the amount when ascertained” was interlocutory. But in that case, although the Court made certain findings upon certain facts, the findings on the remainder of the claim were contingent on the report of the referee which the Court might or might not adopt.
Ex parte Moore, in re Faithful (3) cited in Krakue v. Mensah, sets out succinctly the test for determining whether an order is interlocutory or final. In that case, Brett, M.R., observed:-
“If the Court ordered the result of inquiries to be reported to itself before the judgment was given, it would not be a final judgment. But if the Court orders something to be done according to the answer to the inquiries, without any further reference to itself, the judgment is final….”
The case which appears to me most closely to resemble the present one is the Indian case of Rahimbhoy v. Turner (4). In that case the Privy Council held that “final” for this purpose does not mean the last decree, but the decree determining rights finally, such as a preliminary decree establishing the liability to account and directing accounts to be taken. I pause to observe that in the present case this Court decided that the appellant was entitled to an account and that all that the Court below had to do was to ascertain the amount due in accordance with the terms of the Certificate of the Governor in Council.
In Rahimbhoy v. Turner it was said that, to decide whether a decree is final or not, the Court should look at what was the real question before the Court when the decree was made. “It is true,” said Lord Hobhouse, “that the decree that was made does not declare in terms the liability of the defendant, but it directs accounts to be taken which he was contending ought not to be taken at all, and it must be held that the decree contains within itself an assertion that, if a balance is found against the defendant on those accounts, the defendant is bound to pay it. Therefore, the form of the decree is exactly as if it affirmed the liability of the defendant to pay something on each one of these claims, if only the arithmetical result of the account should be worked out against him. Now that question of liability was the sole question in dispute at the hearing of the cause, and it is the cardinal point of the suits. The arithmetical result is only a consequence of the liability.”
That, to my mind, is what occurred in the present case. The appellant’s claim was for payment at the rate of a shilling in the £ on rents and royalties under certain mining leases. Coussey, J., held he was not entitled to anything, but this Court held that he was entitled to the amount which ought to be paid to him under his claim and it was only left to the Court below to work that out by arithmetical calculation. In my opinion, therefore, on the authorities cited the decision of this Court was a final one, and I think that conditional leave should be granted.
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LEWEY, J. A.
I agree.
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SMITH, J.
I also agree, although at an earlier stage I gave a contrary decision. The case cited in Woodroffe &, Ameer, Ali’s Civil Procedure in British India, which the learned President has referred to, has clarified my mind further on the subject and I now agree that the case of Krakue v. Mensah and cases of that nature are distinguishable and fall into a separate category from the present case.
There is no doubt that the Court below gave a final judgment. There is no doubt that this Court as far as the appeal was concerned also gave a final judgement, and that judgment went further and finally determined the rights of the parties and the remission of the case back to the Court below was merely to make arithmetical calculations. I now, therefore, agree that this was a final judgment and that the present mover has an appeal as of right to the Privy Council and should be granted conditional leave to appeal.
Application granted.
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