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DISTRICT COMMISSIONER
V.
ROBERT DANIEL PATTERSON (REPORT NO. 2)
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
4TH DAY OF MARCH, 1944
2PLR/1944/14 (WACA)
OTHER CITATION(S)
2PLR/1944/14 (WACA)
(1944) X WACA PP. 119 – 120
LEX (1944) – WACA PP. 119 – 120
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
DOORLY, AG. C.J., GOLD COAST
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MATTER/BETWEEN (Report No. 1)
[In re PEACE PRESERVATION (LABADI) ORDER, 1942
AND
In re ROBERT DANIEL PATTERSON, HOUSE NO. E/1/17
AND
In re APPLJCATION FOR WRIT OF PROHIBITION TO ISSUE]
DISTRICT COMMISSIONER – Appellant
AND
ROBERT PATTERSON – Respondent
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ORIGINATING COURT(S)
APPEAL BY ROBERT DANIEL PATTERSON FROM THE REFUSAL OF THE DIVISIONAL COURT, ACCRA, TO ISSUE A WRIT OF PROHIBITION.
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REPRESENTATION
K. A. Bossman with N. A. Ollennu — for Appellant
J. S. Manyo Plange, Crown Counsel — for Respondents (District Commissioner, District Magistrate, and Sheriff, Accra)
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
DEBTOR AND CREDITOR LAW — JUDGMENT DEBTOR:- Interlocutory order attaching a property for sale in satisfaction of judgment debt — Nature of as a final judgment — Right of appeal thereto — Where judgment debt very small compared to value of property attached — How treated by court
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION:- Motion for writ of prohibition — Final or interlocutory judgment
APPEAL:- Irregularity in the inception of the appeal — When would be deemed insufficient to prevent the hearing thereof — Relevant considerations — West African Court of Appeal Ordinance Cap. 5, s. 3(1) and (3)
JUDGMENT AND ORDER:- Judgment which disposed of the issues on the motion argued — Nature of — Whether an appeal lay under Cap. 6, s. 3(1)
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CASE SUMMARY
Appellant moved the Divisional Court, Accra, to issue a writ of prohibition against execution on his property, but was refused.
The amount recoverable was £3 18s. 9d., but property worth more than £100 was attached. Appellant applied for special conditional leave under Cap. 5, s. 3(3) as from an interlocutory judgment; he was granted by the Court below, apparently unintentionally, conditional leave under subsection (1). For Respondent it was argued in the Court of Appeal that an appeal did not lie under either subsection. This report is confined to the preliminary objection on appeal.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held,
1. That as the judgment disposed of the issues on the motion it was final and an appeal lay under Cap. 6, s. 3(1). The “judgment” is not an interlocutory one for which special conditional leave is necessary under subsection (3) of that section.
2. Held also, that irregularity in the inception of the appeal was not sufficient to prevent the hearing thereof.
3. The motion, on the face of it, does not disclose the value of property in issue, but the proceedings show that the sum which is recoverable against the Appellant amounts to £3 18s. 9d. only. It is, however, common ground that in order to recover that sum real property of the value of more than £100 has been attached. Therefore, an appeal lies from the “judgment” of the Divisional Court under subsection (1) of section 3 of the West African Court of Appeal Ordinance Cap. (3), since the “judgment” determines a question respecting property above the value of £100.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:—
The Appellant moved the Divisional Court, Accra for an Order calling upon the District Commissioner, Accra, as Execution Creditor in the above case, the District Magistrate, Accra, and the Sheriff, Accra, “TO SHOW CAUSE WHY AN ORDER FOR WRIT OF PROHIBITION should not issue to prohibit them from proceeding any further in the above suits against the said ROBERT DANIEL PATTERSON the applicant herein, and in particular from proceeding into execution by attaching the real and personal properties of the said Applicant — AND for such further Order as to the Court may seem meet.” Upon that motion the learned Judge in the lower Court delivered a “judgment” refusing the writ.
In our view that was a final “judgment” since it finally disposed of the issues between the parties upon the motion, and would equally have done so if the writ had been granted.
The motion, on the face of it, does not disclose the value of property in issue, but the proceedings show that the sum which is recoverable against the Appellant amounts to £3 18s. 9d. only. It is, however, common ground that in order to recover that sum real property of the value of more than £100 has been attached. We are, therefore, of opinion that an appeal lies from the “judgment” of the Divisional Court under subsection (1) of section 3 of the West African Court of Appeal Ordinance Cap. (3), since the “judgment” determines a question respecting property above the value of £100. We hold that the “judgment” is not an interlocutory one for which special conditional leave is necessary under subsection (3) of that section.
Counsel for the Appellant, however, took the view that the “judgment” was interlocutory and applied for special conditional leave under subsection (3). The learned Judge in the Court below took the same view and granted special leave, but, by what seems to be a slip of the pen, he purported to grant that special leave under subsection (1) instead of subsection (3). Upon the appeal being called on before this Court, Counsel for the Respondent has submitted that the Court has no jurisdiction to entertain the appeal contending (a) (rightly, in our view) that the appeal does not lie under subsection (3) of section 3 of Cap. 5, and (b) (wrongly, in our view) that it also does not lie under subsection (1) of that section.
We agree, however, that the appeal has got before the Court in a wholly irregular manner since the appeal proceedings started with an application for, and grant of, special conditional leave to appeal, instead of merely conditional leave under subsection (1) of section 3. But this Court has held before that such a technicality was not sufficient to prevent this Court from hearing an appeal and endeavouring to do substantial justice between the parties. (G. B. Ollivant, Ltd. v. C. A. Vanderpuye, 2. W.A.C.A., 368.)
We have accordingly decided to hear the appeal upon its merits.
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