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KWAKU YEBOAH
V.
KWABENA KWAO AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
15TH DAY OF JUNE, 1950
2PLR/1951/49 (WACA)
OTHER CITATION(S)
2PLR/1951/49 (WACA)
(1950) XIII WACA PP. 90-91
LEX (1950) – XIII WACA 90-91
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BEFORE THEIR LORDSHIPS
BLACKALL, P.
SMITH, Ag. C.J., GOLD COAST
LEWEY, J.A.
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BETWEEN:
KWAKU YEBOAH – Plaintiffs-Respondent-Appellant
AND
1. KWABENA KWAO
2. KWASI APPIAH – Defendants-Appellants-Respondents
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ORIGINATING COURT(S)
Appeal from Divisional Court of the Supreme Court, CR. APP. 55/49
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REPRESENTATION
C. F. Hayfron-Benjamin — for the Appellant
E. O. Adafu Adjaye — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
Appeal from Supreme Court sitting in its Appellate capacity on an appeal from a Magistrate’s Court–Supreme Court decision on interlocutory judgment-Applicability of case of Shippi v. Adjin to interlocutory judgments-Circumstances in which provisions of section 8 of West African Court of Appeal Ordinance (Cap. 5) can be invoked.
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CASE SUMMARY
The plaintiff was the appellant who appealed against the decision of Korsah, J., sitting in his appellate capacity in a Divisional Court on an Appeal from a Magistrate’s Court. Counsel for the appellant argued that as the decision was an interlocutory one the decision in Shippi v. Adjin is inapplicable. Shippi v. Adjin decided that no appeal lies to this Court from a Divisional Court sitting in its appellate capacity on a magisterial appeal.
The circumstances in which section 8 of the West African Court of Appeal Ordinance (Cap 5) can be invoked were also considered.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
1. Shippi v. Adjin applies whether the decision of the Divisional Court is final or interlocutory.
2. Section 8 of the West African Court of Appeal Ordinance can never be used to cure defects which amount to a failure to comply with a statutory provision.
Cases referred to:
(1) Shippi v. Adjin, 12 W.A.C.A. 472.
(2) Kudiato v. Kudanu, 6 W.A.C.A. 14.
(3) Chief Oloto v. L.E.D.B., 13 W.A.C.A. 57.
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MAIN JUDGMENT
The following Judgments were delivered:
BLACKALL, P.
This is an appeal from a decision of Korsah, J., sitting in his appellate capacity on an appeal from a Magistrate’s Court. The learned Judge ordered that the case be remitted to the Court of first instance for re-trial.
It is contended by Mr. Benjamin for-the appellant that the decision was an interlocutory one and therefore the decision in Shippi v. Adjin (1) is inapplicable I am unable to accede to that proposition. Shippi v. Adjin decided that no appeal lies to this Court from a Divisional Court sitting in its appellate capacity on a magisterial appeal.
In my view, that authority applies whether the decision of the Divisional Court is final or interlocutory. For these reasons I think the appeal should be dismissed.
SMITH, AG. C. J.
I agree.
LEWEY, J.A.
I agree.
I would have had nothing to add except that some reference has been made to the possibility of invoking the provisions of section 8 of West African Court of Appeal Ordinance. I wish to take the opportunity of pointing oat very emphatically that that section can never be used to cure defects which amount to a failure to comply with a statutory provision. The case Mr Asafa-Adjaye referred to of Kudiabor and Kudanu (2) has recently been approved and explained in a judgment given by the Court in Lagos in May of this year in the case of Chief Oloto v, L.E.D.B. (3), which will be included in the cyclostyled judgments. That judgment not only followed Kudiabor v. Kudanu (2) but disposed of certain other decision which may have caused doubts to be entertained on this question.
I agree that this appeal should be dismissed.
Appeal dismissed.
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