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NANA KWATARE NYARKO
V.
NANA KWAKU AKOWUAH AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
11TH DAY OF FEBRUARY, 1954
W.A.C.A. NO. 58/53
2PLR/1954/81 (WACA)
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OTHER CITATION(S)
2PLR/1954/81 (WACA)
(1954) XIV WACA PP. 426-427
LEX (1954) – XIV WACA 426-427
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
NANA KWATARE NYARKO (SQBSTITUTED FOR NANA KON ATTA GYEKI II), ASANKAREHENE – Appellant
AND
NANA KWAKU AKOWUAH (SUBSTITUTED FOR NANA K. OFOSUHENE APENTENG), BOMPATAHENE – Respondent
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REPRESENTATION
Appeal by plaintiff from the decision of the Land Court
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REPRESENTATION
Quist-Therson — for Appellant
Akufo-Addo — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
PRACTICE AND PROCEDURE ISSUE(S)
JURISDICTION:- Lack of jurisdiction — Nullity of judgment — Review of a judgment which was a nullity
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CASE SUMMARY
S. gave a judgment presiding in the Chief Commissioner’s Court on a day before which his appointment to the Court had lapsed. Later, when he was re-appointed, he called the parties, recorded the fact that he had had no jurisdiction when giving that judgment, and said that now his jurisdiction was re-instated he would review that judgment under Order 41, rule 1, in Schedule 3 to the Courts Ordinance (Cap. 4); and without any hearing and in spite of the appellant’s protest that he had appealed from that judgment, S. delivered the identical judgment which he had given before.
When the case came from the Chief Commissioner’s Court to the Land Court (by operation of law) the Judge ruled that S. meant that his first judgment was a nullity and that he was delivering the one and only judgment in the case. From this ruling the appellant appealed again.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (reversing the Ruling of the Land Court) that:
The second judgment was expressly stated to be given on review of the first; but as the first was given without jurisdiction, it was a nullity and the second judgment consequently did not exist; therefore the case was pending in the Land Court and should be entertained there.
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MAIN JUDGMENT
The following judgment was delivered:
COUSSEY, J. A.
I am of opinion that this appeal should be allowed. It is unnecessary to recapitulate the facts, which are set out in the ruling appealed from of the learned Judge of the Land Court.
It is admitted that when Mr. A. C. Spooner delivered his judgment on the 13th May, 1949, his authority to preside in the Court of the Chief Commissioner, Ashanti, had lapsed. It follows that that judgment is ultra vires and a nullity.
It was so declared by this Court on the 3rd January, 1952, on the appeal of the present appellant.
Upon Mr. Spooner’s reappointment to the Chief Commissioner’s Court, he caused notice to be given to the parties, and on the 29th June, 1949, he recorded that he had lacked jurisdiction on the 13th May, but that such jurisdiction had been re-instated by Order published in the Government Gazette of the 25th June, 1949, and he had therefore summoned the parties to appear to enable the Court to review the judgment delivered without jurisdiction. Against this procedure the appellant protested, submitting that he had already fulfilled the conditions for an appeal from the judgment of the 13th May and that there could be no review of that judgment after leave to appeal from it had been obtained.
The record of the Court proceeds:-
“Considering the submissions:-
“In view of the fact that final leave to appeal has not been granted I hold that I have the power to review.
“The judgment delivered on the 13th of May, 1949, in this case is hereby to read as follows…”
And then Mr. Spooner purported to deliver, without any material other than his new appointment, the identical judgment which had previously been delivered without jurisdiction.
Before doing so he had noted that the authority for review was Order 41, rule 1, of Schedule 3 of the Courts Ordinance (Cap. 4).
The learned Judge from whose ruling this appeal is brought expressed the opinion in effect that when Mr. Spooner said he was reviewing his judgment he used the wrong expression and that he was, in fact, intimating that his judgment of the 13th May was a nullity and that he was there and then, on the 29th June, about to deliver the one and only judgment in the appeal.
With respect to the learned Judge, Mr. Spooner did not use the wrong expression for the procedure he followed. In overruling the appellant’s objection he recorded deliberately that he was proceeding under Order 41, rule 1. That was the authority he invoked in the particu1ar matter and it would, in my opinion, be to the prejudice of the appellant to now speculate as to what Mr. Spooner might have done. In other words, since Mr. Spooner assumed, as a matter of law, that there was something in his judgment of the 13th May that was capable of review, I do not think an argument to the contrary should prevail to the material injury of an appellant who was entitled to reason to the effect that a review of a void judgment is itself a nullity and no appeal is necessary to get rid of it.
The appellant in fact rightly or wrongly contented himself with an appeal from the judgment of the 13th May only, pursuing it to finality, and not from the second judgment which is now under consideration.
It is clear to my mind that the judgment of the 13th May was so nugatory, so lacking in authority, that it was incurable, and therefore that the judgment of the 29th June, 1949, does not exist. That being so, by operation of law the appeal from the Asantehene’s ”A2″ Court is now pending in the Land Court, Kumasi, and in my opinion that Court may entertain the appellant’s application for an injunction (which this Court orders to be restored to the list for adjudication on the merits).
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FOSTER-SUTTON, P.
I concur.
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WINDSOR-AUBREY, J.
I concur.
Ruling of the Land Court reversed.
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