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CHIEF ORONSAYE AND ANOTHER
V.
BEN O. EDOH
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
25TH DAY OF OCTOBER, 1954
W.A.C.A. NO. 61/1954)
2PLR/1954/70 (WACA)
OTHER CITATION(S)
2PLR/1954/70 (WACA)
(1954) XIV WACA PP. 595-596
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
JIBWOU, Ag. S.P.J., NIGERIA
BAIRAMIAN, J.
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BETWEEN:
1. CHIEF ORONSAYE
2. OSAWE IGUNBOR – Appellants
AND
BEN O. EDOH – Respondent
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ORIGINATING COURT(S)
Appeal against decision of the Supreme Court reversing the decision of the Magistrate Court
REPRESENTATION
A. O. Abaseki — for the Respondent
D. E. V. Aghahowa — for the Appellants
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY LAW:- Claim before the Magistrate’s Court of the Benin Magisterial District claiming damages for libel — Dismissal of the plaintiff’s claim — Reversal on appeal — How treated on further appeal
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL: Appeals in Civil Cases — Appeal from Supreme Court reversing Magistrate — No application made to Supreme Court for leave — Magistrates’ Courts (Appeals) Ordinance (Cap. 123), section 12 — West African Court of Appeal Ordinance (Cap. 229), section 4.
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CASE SUMMARY
Section 4 of Cap. 229, which pursuant to section 12 of Cap. 123 applies to an appeal from the Supreme Court in a civil appeal from a Magistrate, provides that the appeal shall lie “subject to the following provisions:-
(i) …
“(ii) where the Supreme Court has reversed… the decision of a Magistrate’s Court… the Supreme Court shall give leave to appeal from its decision, etc.”
The plaintiff lost before the Magistrate but on appeal the Supreme Court Judge reversed the Magistrate, and the defendants, without applying for the Judge’s leave, filed a notice of appeal to W.A.C.A. (No. 61/1954).
(Editor’s Note: See on such appeals in General Logios v. Custodian of Enemy Property, 9 N.L.R. 34, and Shippi v. Adjin, Gold Coast cyclostyled judgments of March to June, 1949.
As regards a case where the Supreme Court has affirmed the decision of the Magistrate, with reference to section 4 (i (i) ) of the Nigeria W.A.C.A. Ordinance (Cap. 229), see Asare Koranteng of Accra v. Opanin Kwame Ayim and Kwaku Adu (both of Apapam), a Gold Coast case decided on 23rd March, 1953, with reference to the analogous provision in section 4(i) of the Gold Coast W.A.C.A. Ordinance: if the Supreme Court refuses the special leave to appeal required by the section, there is no right to apply to the West African Court of Appeal.
As regard section 4 (ii) of the Nigerian W.A.C.A. Ordinance (Cap. 229), see the ruling below.)
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MAIN JUDGMENT
FOSTER-SUTTON, P.
In this case the respondent filed a notice of preliminary objection under rule 21(1) of the West African Court of Appeal Rules, 1950. The ground of objection is that the appellant has failed to apply for, nor has he been granted leave to appeal in accordance with the provisions of paragraph (ii) of section 4 of the West African Court of Appeal Ordinance (Cap. 229).
The respondent, who was the plaintiff in the Court of first instance, sued the appellants in the Magistrate’s Court of the Benin Magisterial District claiming damages for libel. The Magistrate who tried the case dismissed the plaintiff’s claim, and that judgment, on appeal to the Supreme Court, was reversed and judgment entered for the respondent. The appellants then filed a notice of appeal which brought the matter before this Court.
The right to appeal to this Court in such cases is conferred by section 12 of the Magistrates’ Courts (Appeals) Ordinance (Cap. 123), which, however, expressly provides that –
“the provisions of the West African Court of Appeal Ordinance and the rules made in respect thereof relating to appeals in civil cases shall apply to any such appeal”;
and the relevant provision in that Ordinance reads as follows:
”An appeal shall lie to the Court of Appeal from the decision of the Supreme Court on appeal … where the Supreme Court has reversed or materially altered the decision of a Magistrate’s Court … the Supreme Court shall give leave to appeal from its decision subject to the like conditions as if the decision bad been given in a suit originating in the Supreme Court.”
As Lord Atkin pointed out in the judgment of the Judicial Committee of the Privy Council in the case of Ohene Moore v. Akessah Tayee, reported in Volume 2, W.A.C.A. Reports, p. 43, all appeals” exist merely by statute and unless the statutory conditions are fulfilled no jurisdiction is given to any Court of Justice to entertain them.”
Section 4(ii) of Cap. 229 requires the Supreme Court to grant leave in a case such as this, but in order to enable it to do so an application asking for such leave must be made. Until that has been done this Court is not seized of the appeal and has no jurisdiction to entertain it.
The respondent’s preliminary objection is, therefore, upheld, and the appeal must accordingly be struck out with costs to the respondent which we fix at £16 17s. 6d.
Appeal struck out.