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ASARE KORANTENG OF ACCRA
V.
OPANIN KWAME AYIM AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
23RD DAY OF MARCH, 1953
2PLR/1953/36 (WACA)
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OTHER CITATION(S)
2PLR/1953/36 (WACA)
(1953) XIV WACA PP. 301 – 302
LEX (1953) – XIV WACA 301 – 302
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
KORSAH, J.
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BETWEEN:
ASARE KORANTENG OF ACCRA – Appellant
AND
OPANIN KWAME AYIM AND KWAKU ADU (BOTH OF APAPAM) – Respondents
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ORIGINATING COURT(S)
Motion by the defendant for special leave to appeal from the Land Court
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REPRESENTATION:
J. Sarkodee Adoo — for the Applicant
E. H. Jones — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF THE ACTION
NA
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeals in Civil Cases-Land Court affirming Native Court – Land Court refusing special leave to appeal further – West African Court of Appeal Ordinance (Cap. 5), sections 3 and 4(1) – Courts Ordinance (Cap. 4), sections 20A and 20C.
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CASE SUMMARY
Section 3 of the W.A.C.A Ordinance relates to appeals from a Divisional Court sitting in its original jurisdiction and is irrelevant here. Section 4 provides that –
“An appeal shall lie from the decision of a Divisional Court on appeal from … a Native Court subject to the following provisions:-
“(1) Where the Divisional Court has affirmed the Native Court the appeal shall lie only by special leave of the Divisional Court; etc.”
Section 20A of the Courts Ordinance creates the Lands Division of the Supreme Court with its Land Court, to which are applied by sub-section (3) all provisions relating to a Divisional Court in the exercise of its civil jurisdiction; and section 20C enables an appeal from the Land Court exercising its original or any appellate jurisdiction “in like manner and subject to the like conditions as if the appeal were an appeal to the West African Court of Appeal from a Divisional Court.”
The Land Court having affirmed the judgment of the Native Court, the defendant applied to the Land Court for special leave to appeal to W.A.C.A., and on being refused applied to W.A.C.A. itself for special leave to appeal.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
The right to appeal is statutory: in this case it is governed by section 4 of the West African Court of Appeal Ordinance, and no right is conferred to apply to the Court of Appeal when the Land Court refuses the special leave required under paragraph (1) of section 4.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
This was a motion for special leave to appeal from a decision of Van Lare, J., by which he refused special leave to appeal from a judgment of the Land Court affirming a judgment of the Native Court of Akyem Abuakwa. Application for special leave to appeal was made to Van Lare, J., under the provisions of paragraph (1) of section 4 of the West African Court of Appeal Ordinance (Cap. 5), as amended by section 3 of Ordinance No. 6 of 1951, which provides, read with sub-section 3 of section 20A of the Courts Ordinance, (Cap. 4) that in cases where the Land Court affirms a decision of a Native Court an appeal shall only lie to this Court by special leave of the Land Court.
We indicated, during the hearing of the motion, that, in our view, the learned Judge in the Court below had properly exercised his discretion in refusing special leave to appeal in this case.
The only question which remains for determination, therefore, is whether the applicant, having failed to obtain special leave to appeal from the Judge of the Land Court, can now apply to this Court for special leave to appeal.
The right to appeal is statutory and the legislature has expressly provided that where the Land Court has affirmed the decision of a Native Court an appeal against such affirmation “shall lie only by special leave of the Land Court”, and no right to repeat the application to this Court is conferred. The answer to the question is, therefore, clearly in the negative.
We were also invited to consider whether a decision given under the paragraph in question is an interlocutory or final one on the assumption that if the former, the provisions of paragraph (3) of section 3 of Cap. 5 would apply, but, in my view, the question is irrelevant, because that paragraph only applies to decisions of a Land Court “sitting in its original jurisdiction”. In this case the decision was given in exercise of its appellate jurisdiction and since the amendment to section 20C of the Court Ordinance, effected by the Courts (Amendment) Ordinance, 1951, all appeals in this type of case are governed by the provisions of section 4 of Cap. 5.
It follows that, in my opinion, this motion must be dismissed with costs, which I would fix at £5 12s. 0d.
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COUSSEY, J. A.
I concur.
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KORSAH, J.
I concur.
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Motion dismissed.
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