–
MAMA GARIBA AND OTHERS
V.
ALHAJI IBRAHIMAH OF SEKONDI (2)
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
2ND DAY OF JULY, 1951
2PLR/1951/32 (WACA)
OTHER CITATION(S)
2PLR/1951/32 (WACA)
(1951) XIII WACA P. 246-247
LEX (1951) – XIII WACA 246-247
–
BEFORE THEIR LORDSHIPS:
VERITY, AG. P.
LEWEY, J.A.
MORGAN, J.
–
BETWEEN:
1. MAMA GARIBA
2. MAAZI GARIBA
3. ADJARA GARIBA,
AS CHILDREN AND SUCCESSORS OF THE LATE MILLAM GARIBA (deceased) OF SEKONDI – Motion Respondents to Privy Council
AND
ALHAJI IBRAHIMAH OF SEKONDI – Appellant to Privy Council
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LAND:- Suits relating to ownership of land held under native tenure – Respect to be paid to decisions of Native Courts – Wider discretion of Land Court to interfere where Native Court of first instance and Native Court of Appeal differ – Proper treatment of
CHILDREN AND WOMEN LAW:- Land held by wife – Evidence it was granted (in lieu of an old land formerly belonging to her husband who had migrated away) by government and developed by compensation paid by government for same – Where old building demolished and rebuilt with additions by woman and adopted son – Claim against adopted son by children of other wives of husband – How treated
FAMILY LAW – FAMILY PROPERTY – STEP CHILDREN AND ADOPTED CHILD:- Claim over land against adopted child by step-children of deceased woman on ground property belonged to wife of deceased woman and thus father of the step-children – Finding that property belonged to woman – Legal effect
–
PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Section 8 of the West African (Appeal to Privy Council) Order-in-Council, 1949 – Application by substantive motion for Court to exercise its powers thereunder – Whether such power exercisable on substantive motion or only when leave to appeal or final leave to appeal is granted – Powers of the Court under Rules 39 and 40 of the West African Court of Appeal Rules, 1950
–
CASE SUMMARY
This was a motion praying (1) for an order directing the Court below to carry out a judgment of this Court, (2) for the appointment of a receiver and manager, and (3) for an order that the plaintiff be re-admitted to occupation of part of the premises.
Section 8 of the West African (Appeal to Privy Council) Order in Council, 1949, empowers the Court when granting leave to appeal either to direct that the judgment, subject to appeal to the Privy Council, shall be carried into execution, or that execution shall be suspended.
Counsel for the applicant argued that such an application could be granted on a substantive motion, and not when the Court was granting leave to appeal or final leave. It was also argued that Rules 39 and 40 of the West African Court of Appeal Rules, 1950, could be invoked.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (refusing the Application) that:
1. When granting leave to appeal or final leave, it may be that the Court can entertain such an application. The Court has no power to entertain such an application on a substantive motion made independently of an application for leave to appeal or final leave.
2. Rules 39 and 40 of the West African Court of Appeal Rules, 1950, relate only to the enforcements of judgments of the West African Court of Appeal. The applications did not relate to the judgment of the West African Court of Appeal and the Court had now no power to add to its judgment.
Motion relating to an appeal pending before the Privy Council: Selected Judgments of W.A.C.A. June to August, 1951.
–
–
MAIN JUDGMENT
The following Judgment was delivered:
VERITY, AG. P.
This is a motion praying (1) for an order directing the Court below to carry out a judgment of this Court dated 16th March, 1951, for a re hearing of certain issues, (2) for the appointment of a receiver and manager pending the “determination of the suit, and (3) for an order that the plaintiff be re-admitted to occupation of certain rooms in the premises the subject of the action.
In regard to the first of these prayers no such order is necessary. There has up to the present time, been no order staying the execution of the judgment of this Court pending an appeal to His Majesty in-Council, and the order of this Court will doubtless be carried out by the Court below in due course in compliance with this Court’s directions, unless and until a stay is granted.
In regard to the second and third prayers Counsel submitted that this Court is empowered to grant them by virtue of section 8 of the West African (Appeal to Privy Council) Order in Council, 1949, or alternatively that this Court has power to do so by virtue of Rules 39 and 40 of the West African Court of Appeal Rules, 1950.
Section 8 of the Order-in-Council provides that in certain circumstances this Court shall have power, “when granting leave to appeal”, either to direct that the judgment against which it is subject to appeal shall be carried into execution or that the execution shall be suspended pending the appeal. No order in either respect appears to have been made when conditional leave to appeal was granted and no application has yet been before the Court for final leave to appeal. When such leave is granted it may be that the Court, when granting it, would entertain such an application as the present, but I see no power vested in this Court by the Order-in-Council to entertain it as a substantive motion. On this footing, therefore, I think the Court has no power to make the orders prayed. At the same time, I do not wish to be understood as expressing any opinion as to whether or not any such application does fall within section 8 of the Order-in Council or whether or not this Court has power to make any such orders as those prayed in the circumstances of this case.
As to Rules 39 and 40 of the rules, these relate to the enforcement of the judgments of this Court. The appointment of a receiver and manager and the re-admission of the plaintiff to possession are no part of the judgment of the 16th March, and this Court has now no power to add to that judgment. ·
On all grounds, therefore, I consider that the application fails and must be dismissed with costs.
–
LEWEY, J. A.
I concur.
–
MORGAN, J.
I concur.
–
Application refused.
–