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OWUSU ASUMA LOTSU
V.
MODJIFA KUDJEY
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, GOLD COAST
11TH DAY OF JUNE, 1951
2PLR/1951/23 (WACA)
OTHER CITATION(S)
2PLR/1951/23 (WACA)
(1951) XIII WACA PP. 239 – 240
LEX (1951) – XIII WACA 239 – 240
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BEFORE THEIR LORDSHIPS:
VERITY AG. P.
LEWEY, J.A.
MORGAN, J.
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BETWEEN:
OWUSU ASUMA LOTSU – Plaintiff
AND
MODJIFA KUDJEY – Defendant
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ORIGINATING COURT(S)
Application for special leave to appeal from Land Court
REPRESENTATION
J. Quist-Therson — for Plaintiff
K. A. Bossman — for Defendant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Application for special leave to appeal from interlocutory judgment by Land Court sitting in its appellate jurisdiction – Power of West African Court of Appeal to grant special leave – Application of Rule 13 of the West African Court of Appeal Rules, 1950
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CASE SUMMARY
The plaintiff was the applicant. He applied to the West African Court of Appeal for special leave to appeal from an interlocutory judgment of the Land Court sitting in its appellate jurisdiction on an appeal from a Native Court. The Land Court had refused to re-list an appeal which it had struck out for want of prosecution.
The combined effect of section 20C of the Courts Ordinance (Cap. 4) and section 3 of the West African Court of Appeal Ordinance (Cap. 5), is that an appeal lies from an interlocutory order of a Land Court, whether in its original or appellate jurisdiction, only by special leave of that Court.
Counsel for the applicant argued that the West African Court of Appeal had power to grant special leave under Rule 13 of the West African Court of Appeal Rules, 1950, and further submitted that there appeared to be a conflict between the rules and section 3 of the Ordinance.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (Motion dismissed) that:
1. Section 3 of the West African Court of Appeal Ordinance is concerned with the substantive right of appeal and determines when and under what conditions an appeal lies.
2. Rule 13 is concerned merely with procedure in matters to which it relates, that is to say, the method whereby special leave may be sought in cases in which leave of the West African Court of Appeal is required by law.
3. Under section 3 of the said Ordinance the only Court empowered to grant special leave from an interlocutory judgment of the Land Court is the Land Court itself, consequently Rule 13 had no application.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, AG. P.
This is an application for special leave to appeal from an order of the Land Court, Accra, refusing in the exercise of its appellate jurisdiction to re-list an appeal therein from the decision of a Native Court which had been struck out for want of prosecution. It is conceded that the order against which special leave to appeal is sought is an interlocutory order.
By section 20C of the Courts Ordinance (Cap 4) (as amended by section 6 of the Courts (Amendment) Ordinance, 1944, it is provided that:-
“Any party aggrieved by a decision of the Land Court exercising its original or any appellate jurisdiction, may appeal to the West African Court of Appeal in like manner and subject to the like conditions as if the appeal were an appeal to the West African Court of Appeal from a Divisional Court exercising its original jurisdiction.”
By section 3 of the West African Court of Appeal Ordinance (Cap 5), it is provided that:-
“An appeal shall lie to the Court of Appeal from a Divisional Court (sitting in its original jurisdiction) … by special leave of the Court making the order, but not otherwise, from all interlocutory orders and decisions. …”
The effect of these two enactments is that an appeal lies from an interlocutory order of a Land Court, whether in its original or appellate jurisdiction, only by special leave of that Court. No such leave has been obtained in the present case, but application therefore has been made to this Court.
Counsel for the applicant sought to ground this application upon Rule 13 of the West African Court of Appeal Rules, 1950, as enabling him to come to this Court for the necessary leave. This rule makes provision for the procedure to be adopted when special leave to appeal is sought from this Court, but has in my opinion, no reference to applications for special leave when this leave is required from the Court below. It has no bearing upon the present case, which is one in which it is required by statute that the leave of the Court making the order shall be obtained as a condition precedent to the right of appeal. The submission of Counsel that there appears to be a conflict between the provisions of the Ordinance and those of the Rules in this regard, is in my opinion misconceived, Section 3 of the Ordinance is concerned with the substantive right of appeal and determines when and under what conditions an appeal shall lie. Rule 13 is concerned merely with the procedure in matters to which it relates, that is to say, the method whereby special leave may be sought from this Court in cases in which the leave of this Court is required. It is, therefore, only applicable in such cases and has no application to cases in which leave is to be sought from the Court making the order against which it is desired to appeal. The Ordinance provides that an appeal shall lie only by leave in certain cases and prescribes from which Court leave shall be sought. The rule prescribes the procedure to be followed in those cases only in which leave is to be sought from this Court and has no bearing whatever upon the right of appeal or upon the statutory requirement that in such cases as the present an appeal lies only by special leave of the Court below. ·
In my opinion, therefore, there can be no doubt that Rule 13 has no application to the present proceedings in which no leave is required or can be granted by this Court, and the motion should therefore be dismissed with costs.
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LEWEY, J. A.
I agree.
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MORGAN, J.
I agree.
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Motion dismissed.
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