Ababio, etc. & anor. V. Dennis, etc. & Anor (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Application for conditional leave to appeal to the Privy Council—distinction between final and interlocutory judgments—application for leave refused.

Held : The judgment of the Court against which leave is sought to appeal was an interlocutory one, and under 3 (b) of the W.A. (Appeal to Privy Council) Order-in-Council, 1930, Appeal lies only at the discretion of the Court.

Salman v. Warner & Ors. (1891, 1 Q.B.D. 734) followed.

There is no need to set out the facts.

F. A . Williams (with him C. F. H. Benjamin) for Appellant. K. A. Korsah (with him D. M. Abadoo) for Respondents.

The following joint judgment was delivered :-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, GRAHAM PAUL, C.J., SIERRA LEONE.

The Co-Plaintiff-Appellant appealed to this Court from a judgment of Doorly, J. dated 20th July, 1939.

This Court by its judgment of the 7th March, 1940, dismissed that appeal with costs saying :-

” We are satisfied that this is an appeal from an interlocutory decision and not from a final judgment. Special leave to appeal was not obtained ; consequently the appeal cannot be entertained under section 3 of the West African Court of Appeal Ordinance “.

Plaintiffs-Appellants have applied to this Court for conditional leave to appeal from that judgment to His Majesty’s Judicial Committee of the Privy Council under Rule 3 (a) of the ” West African (Appeal to Privy Council) Order in Council, 1930,” Co-

plaintiff-Appellant’s Counsel contended that the judgment of this Court of the 7th March, 1940 was a ” final judgment of the Court, where the matter in dispute on the appeal amounts to or is of the value of £500 sterling or upwards ” and he is therefore entitled to appeal as of right. He submitted that the judgment of this Court was a final one because all that was before the Court was a particular appeal which was dismissed by the Court and that as nothing remained to be done in that appeal it was a final and not an interlocutory judgment .

In Stamm v. Warner and Others, 1891, 1 Q .B.D. 734, the Court of Appeal held that a ” final order ” is one made on such an application or proceeding that, for whichever side the decision is given, it will, if it stands, finally determine the matter in litigation.

Lord Esher, M.R. in his judgment in that case said :—

” Taking into consideration all the consequences that would arise from deciding in one way and the other respectively, I think the better conclusion is that the definition which I gave in Standard Discount Co. v. La Grange (4) is the right test for determining whether an order for the purpose of giving notice of appeal under the rules is final or not. The question must depend on what would be the result of the decision of the Divisional Court, assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules, it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory “.

In our opinion the test of what is a final judgment of this Court is not whether on a particular point this Court in a judgment said :ts last word, but whether that judgment finally determined the matter in litigation between the parties. Applying this test we are satisfied that the judgment of this Court of the 7th March, 1940,

an interlocutory and not a final judgment. The effect of that _pigment was to leave the suit still pending and unfinished in the –^–_^–.^–Jurt below, and of course to leave the appellant a right to appeal

this Court on all points when final judgment is given in the Court below.

Since the close of the argument in this case our attention has been drawn to the judgment of the Privy Council in the case of McDonald and Belcher and Others, 1904 A .C. 429. The Privy Council on the facts in that case held that there was a final judgment as to the claim for 550,000.

Looking at the judgment of Doorly, J. of the 20th July, i939, we are unable to find that he pronounced any final judgment as to rents and profits collected and/or received by the defendants is respect of Himan lands. In the course of his judgment the judge examined the evidence for the plaintiff and the defendant on the question of these rents and profits but makes no finding of fact. The only conclusion one can come to is that the learned trial Judge intended to give a formal judgment when accounts

had been rendered in accordance with his interlocutory judgment. The judgment is ambiguous and it is to be regretted that the co-plaintiff did not apply to the Judge and have the ambiguity put right as she might so easily have done when she went before the Judge the next day or by a request to review the judgment. The Privy Council in their judgment in McDonald v. Bekker said, ” If they (the plaintiffs) did not understand the meaning of the learned Judge, what would have been simpler than for them to apply to the Court, and to have the matter put right ? “

The application-for leave to appeal under Rule 3 (a) is dismissed with costs assessed at 5 guineas.