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WEST AFRICAN DEVELOPMENTS SYNDICATE LIMITED
V.
J. W. TSIBOE
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
17TH DAY OF FEBRUARY, 1950
2PLR/1950/41 (WACA)
OTHER CITATION(S)
2PLR/1950/41 (WACA)
(1950) XIII WACA PP. 20-21
LEX (1950) – XIII WACA 20-21
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
LEWEY, J.A.
SMITH, J.
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BETWEEN:
WEST AFRICAN DEVELOPMENTS SYNDICATE LIMITED – Defendant-Appellants-Appellants
AND
J. W. TSIBOE – Plaintiff-Respondent-Respondent
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ORIGINATING COURT(S)
A motion on notice for leave to appeal from Supreme Court
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REPRESENTATION
E. Cawston — for Defendants (Appellants)
K. Adumua-Bossman — for the Plaintiff-Opposer
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Construction of section 4(1) of the West African Court of Appeal Ordinance (Cap. 5) – Circumstances in which Court of Appeal can grant leave to appeal under section 8 of said Ordinance considered.
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CASE SUMMARY
The defendant-applicants moved the Court for leave to appeal under the provisions of section 8 of the West African Court of Appeal Ordinance (Cap. 5). The applicant had been unsuccessful before a magistrate and on appeal to the Divisional Court. The real questions on this motion were concerned with whether or not under section 4 of the said Ordinance an appeal lies from the Divisional Court and whether, if an appeal does not ordinarily lie the provisions of section 8 of the West African Court of Appeal Ordinance can properly be invoked to remedy this.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Application) that:
1. Following Shippi v. Adjin, 12 W.A.C.A. 472, that section 4 of the said Ordinance does not of itself give any right of appeal where no such right exists, but merely provides for the manner in which such a statutory right is to be exercised.
2. No Ordinance empowers a party to appeal who has been unsuccessful both before a magistrate and on appeal to the Divisional Court, and, therefore, section 4 was not applicable.
3. No appeal lies to this Court there can be no question of invoking the provisions of section 8 of the West African Court of Appeal Ordinance.
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MAIN JUDGMENT
The following orders were delivered:
LEWEY, J.
In my opinion this motion must fail as having no real merits.
It has been submitted on behalf of the respondent, and, I think, with some force, that the appealable value, having regard to the amount of the judgment in the Court below, falls below the amount which would entitle a party to come to this Court: though the appellant has argued that this was not fatal to his appeal, since the major part of his action related to ejectment. It is not, however, necessary to give a decision on that aspect of the matter, since the real questions on this motion are concerned with whether or not in this case an appeal lies to this Court from the Divisional Court (notwithstanding that the Divisional Court has refused to give special leave), and whether – if an appeal does not ordinarily lie-the provisions of section 8 of the West African Court of Appeal Ordinance (Cap. 5) can properly be invoked to remedy this.
I do not think it is necessary to examine in any detail the principles governing the application of section 8: it is sufficient to say that there is ample authority to show that before section 8 can be applied we must be satisfied that there is already an appeal before this Court. In the present case it cannot possibly be said, in my opinion, that there is an appeal before us. The relevant law is to be found in section 4(1) of the West African Court of Appeal Ordinance which reads as follows:-
“4. An appeal shall lie to the Court of Appeal from the decision of a Divisional Court on appeal from the decision of a Magistrate, where an appeal lies therefrom under any ordinance, subject to the following provisions:
(1) Where the Divisional Court has affirmed the decision of the Magistrate the appeal shall lie only by special leave of the Divisional Court.”
The true construction of that sub-section was examined and explained by this Court in the case of Shippi v. Adjin (1) to which reference has been made. It is clear from that case that an appeal in a civil case from a Divisional Court in its appellate capacity only lies where a right of appeal is expressly conferred by some other ordinance, and that section 4 of the West African Court of Appeal Ordinance does not of itself give any right of appeal where no such right exists, but merely provides for the manner in which such a statutory right is to be exercised. There is nothing before us to show that there is any provision in the Courts Ordinance or in any other ordinance whereby a party who, like the defendants in this case, has been unsuccessful both before a Magistrate and on appeal to a Divisional Court, can then come to this Court. And the judgment in Shippi v. Adjin confirms that no such provision is to be found. If there were anything of the kind, it would still be necessary, under section 4(1) of the West African Court of Appeal Ordinance, for the would-be appellant to obtain the special leave of the Divisional Court before he could come to this Court. In the present case, the appellants did attempt – for what it was worth – to get special leave, but it was refused.
It seems to me, therefore, abundantly clear that in this case no appeal lies to this Court. It follows that there is no appeal before us, and that, in consequence, there can be no question of invoking the provisions of section 8 of the West African Court of Appeal Ordinance.
The motion must be dismissed.
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BLACKALL, P.
I agree.
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SMITH, J.
I agree.
Application dismissed.
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