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ANIS JOSEPH HALABY
V.
NEIF JOSEPH HALABY AND ANOTHER
WEST AFRICAN COURT OF APPEAL, HOLDEN FOR ACCRA, GOLD COAST
14TH DAY OF MARCH, 1951
2PLR/1951/13 (WACA)
OTHER CITATION(S)
2PLR/1951/13 (WACA)
(1951) XV WACA P. 170
LEX (1951) – XIII WACA 170
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
LEWEY, J.A.
COUSSEY, J.
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BETWEEN:
SUIT NO. 248/49
ANIS JOSEPH HALABY-RESPONDENT
AND
1. NEIF JOSEPH HALABY
2. MESSRS. CASSLETON ELLIOT & COMPANY-APPELLANTS
AND
SUIT NO. 11/50
NEIF JOSEPH HALABY-APPELLANT
AND
1. ANIS JOSEPH HALABY
2. MESSRS. CASSLETON ELLIOTT & COMPANY-RESPONDENT
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ORIGINATING COURT(S)
Appeal from the Supreme Court. CIV.APP.34/50
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REPRESENTATION
G. C. Lokko with Causton — for Appellant
Asafu-Adjaye — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Impropriety of lodging an appeal containing no grounds for the purpose of delay – Proper order to be made on an application to withdraw.
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CASE SUMMARY
The appeal contained no grounds of appeal and Counsel for the appellant admitted it was merely brought for the purpose of delay and he wished to withdraw it.
The Court also considered the proper order to be made on an application to withdraw an appeal.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal):
1. It was an abuse of the process of the Court to lodge an appeal containing no grounds for the purpose of delay.
2. An appeal either succeeds or it fails. If it fails because the appellant abandons it the one and only order that can be made is that it should be dismissed.
Case referred to:
(i) In re Hon. Mrs. Deirdre Samuel, 1945, 2 All E.R. 319 at 321.
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MAIN JUDGMENT
The following Judgement was delivered:
BLACKALL, P.
This so-called appeal contains no grounds of appeal and counsel admits it was merely brought for the purpose of delay and he now wishes to withdraw it. It is an abuse of the process of the Court to adopt this practice. As to the application to withdraw the appeal Lord Greene, M.R., in re The Hon. Mrs. Deirdre Samuel (1) said this:-
“There have been from time to time different views taken as to what is the proper order, but it is now quite clearly settled, beyond any possibility of doubt, that the phrase ‘withdraw the appeal’ is not the right phrase, nor is an order giving leave to withdraw an appeal the right order to make. The right order to make is an order dismissing an appeal. An appeal either succeeds or it fails. If it fails because the appellant abandons it, the one and only order that can be made is that it should be dismissed, and the Court’s records are, accordingly, kept in order.”
In accordance with that dictum the appeal should be dismissed.
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LEWEY, J. A.
I agree.
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COUSSEY, J.
I also agree.
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Appeal dismissed.
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