Ado Kofi & Ors V. Opanyin Kwaku Twum (1938)
LawGlobal Hub Judgment Report – West African Court of Appeal
Application for special conditional leave to appeal under rule 16 of West African Court of Appeal Rules 1937—Delay in filing application—Conditions governing appeal under sec. 3 (1) of the West African Court of Appeal Ordinance (Cap. 5)—Entertainment of appeal under sec. 8 of Cap. 5.
Held: Though no appeal lay as of right under section 3 (1), owing to quantum of claims, appeal can be entertained under section 8; application, being the first under the new Rules, granted despite unjustifiable delay, but decision not to be treated as a precedent, while costs ordered against the appellant.
There is no need to set out the facts.
Frans Dove (Ofei Awere with him) for Applicant. K. A. Bossman for Defendants.
The following joint decision was delivered :—
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBB, C.J., SIERRA LEONE.
This is an application by the defendant for special conditional leave to appeal to this Court under rule 16 of the West African Court of Appeal Rules, 1937, from a judgment delivered in the Divisional Court on the 6th May, 1938.
The first point to be noted is that the application–was filed on the 5th November, 1938, i.e. one day before the expiration of the time allowed by the rule. The rule provides that such special conditional leave shall only be granted where the Court is satisfied that there has been good cause or reasonable excuse for the failure to apply to the Court below within three months. It is the intention of this Court to be strict in requiring to be fully satisfied upon this point before granting leave, but since this is one of the first cases under the new rules we have decided to exercise not quite the same degree of strictness as we shall in future. The excuse given in this case is that the appellant has been ill. This is not supported by medical certificate or affidavit from a medical attendant and is disputed by the respondents. However we have decided this occasion not to refuse to grant leave on this account, but this must not be taken as a precedent for what will be the attitude of this Court to future applications under this rule.
The next point for consideration is one brought to our notice by the respondents. It is that in fact there were eight quite separate actions by eight distinct plaintiffs against the same
defendant, and it was only for convenience that they were consolidated and tried together; that in the case of seven out of the eight the land the subject matter of the dispute is of less than £100, and that consequently an appeal does not lie under section 3 (1) of the West African Court of Appeal Ordinance (Cap. 5). We think that the affidavits filed establish the necessary facts to support this contention, and also that the contention is correct in law.
We do not agree with the submission of counsel for the appellant that an appeal lies under section 86 of the Native Administration (Colony) Ordinance (Cap. 76). But counsel for the appellant points out that these suits were started in the tribunal of the Paramount Chief of the Akwapim State from which they were transferred by the Court of the Provincial Commissioner to the Divisional Court for hearing; that if it had not been for such transfer there would have been an absolute right of appeal from the tribunal to the Provincial Commissioner’s Court and from that Court to this Court; and that it cannot have been the intention of the legislature that the exercise of the power of transfer by the Provincial Commissioner’s Court should have the effect of depriving the unsuccessful party of a right of appeal in a case not falling within section 3 (1) of Cap. b. We think that this is very likely the case, and that it is possibly an oversight that no right of appeal in such cases is included in section 3 of chapter b.
This being so we have decided to exercise in appellant’s favour the very wide powers to ” entertain any appeal ” conferred upon us by section 8 of chapter 5.
Special conditional leave to appeal is, therefore, granted to the appellant upon the following conditions :
- The appellant within one month to pay into the Court below the sum of £30 to cover the cost of the making up and transmission to this Court of the record of
aPPeal.
- The appellant within one month to give security to the satisfaction of the Court below, with two sureties to be justified in the sum of £100, for the payment of all such costs as may be awarded to any of the respondents by this Court.
- The appellant within one month to give notice of the appeal to each of the respondents.
Inasmuch as the necessity for these proceedings is due to the appellant and not the respondents, and since the opposition of the respondents has been fully justified and it is only as an indulgence that the appellant’s application is granted, the appellant must pay the respondents’ costs upon this motion which we assess at five guineas.
