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JAMES SAM BANSAH OF SWEDRU
V.
G. B. OLLIVANT LIMITED
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
18TH DAY OF JANUARY, 1954
CIVIL APPEAL NO. 84 OF 1953
2PLR/1954/55 (WACA)
OTHER CITATION(S)
2PLR/1954/55 (WACA)
(1954) XIV WACA P. 408
LEX (1954) – XIV WACA 408
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
JAMES SAM BANSAH OF SWEDRU – Appellant
AND
G. B. OLLIVANT, LIMITED – Respondents
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ORIGINATING COURT(S)
NA
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REPRESENTATION
Koi Larbi — for the Appellant
Bossman — for the Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeals in Civil Cases – Appeal from Judge’s refusal to review his judgment – Special leave to appeal not obtained – Such refusal at an interlocutory decision – Cap. 5, section 3 (3).
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (striking out the Appeal):
1. A Judge’s refusal to review his judgment is an interlocutory decision; and
2. if special leave to appeal from the refusal has not been obtained, the appeal from the refusal is not properly before the Court of Appeal;
3. therefore the Court has no power to grant leave to amend the notice of appeal
Cases cited:-
(1) In re Jerome (1907) 2 CA. D. 145.
(2) Peek v. Peek (1948) 2 All E.R. 299.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
We hold that this Court has no power to grant leave to amend the Notice of Appeal – to do so would have the effect of granting leave to appeal from a decision against which there has been no appeal filed. The position is that there is no appeal before us.
On the question as to whether or not the decision of 1st April, 1953, was an interlocutory or final one. The question for determination is — does the order under appeal finally dispose of the rights of the parties. In our view it does not.
Note: In re Jerome (1); Peek v. Peek (2).
If the learned trial Judge had agreed to review his judgment, Order 41, that decision could clearly not have finally disposed of the rights of the parties, and a refusal to review does not because it is the judgment which is the subject of the application for review which finally disposed of the rights of the parties, not the trial Judge’s refusal to review it.
We accordingly hold that the refusal to review was an interlocutory decision and special leave to appeal from it not having been obtained, paragraph (3) of section (3) of Chapter 5, this appeal is not properly before us.
In the circumstances this appeal is struck out with costs fixed at £9 11s. 0d. This takes into account the costs of the previous hearing — adjusted by reducing the fee allowed to counsel on the appeal from £10 10s. 0d. to £5 5s. 0d.
Appeal struck out.
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