Asafoatse Shippi & Ors V. Nii Afotey Adjin & Anor (1949)

LawGlobal Hub Judgment Report – West African Court of Appeal

Appeal from Supreme Court (Appellate jurisdiction)—Right of appeal—Gold Coast West African Court of Appeal Ordinance, sections 4 and 3—”Where an appeal lies theiefrom under any Ordinance”—Nigerian West African Court of Appeal Ordinance, section 4—Nigerian Magistrates Courts (Appeals) Ordinance, section 12—Nigerian Native Courts Ordinance, section 34Jurisdiction of West African Court of Appeal in appeals from AppellateJurisdiction of Divisional Courts.

The words in section 4 of the Gold Coast West African Court of Appeal Ordinance ” where an appeal lies therefrom under any Ordinance ” are of the utmost significance in deciding whether an appeal lies to the West African Court of Appeal from the decision of a Divisional Court given on an appeal from the decision of a Magistrate’s Court in a civil case.

The true construction of section 4 is that, where an appeal lies to the West African Court of Appeal from the decision of a Divisional Court in its appellate jurisdiction, it shall lie subject to the provisions of the section.

There being no provision^–in the relevant Ordinance (the Gold Coast Courts Ordinance) for appeals to the West African Court of Appeal from the decisions of a Divisional Court given in its appellate (civil) jurisdiction, no appeal lies, by virtue of section 4 of the Gold Coast West African Court of Appeal Ordinance, to the West African Court of Appeal in such cases.

Case referred to:

(1) G.B. 011ivant Ltd. v. Vanderpuye, 2 W.A.C.A. 368.

Appeal from the Supreme Court of the Gold Coast.

Danquah for Appellants.

Rosman for Respondent.

The following judgment was delivered:

Verity, C.J. This is an appeal from a judgment of a Divisional Court on appeal from the decision of a Magistrate in a civil case. The claim in the Magistrate’s Court was for the sum of £100. The Magistrate gave judgment for the plaintiffs, on appeal the Divisional Court reversed this judgment, and from this reversal the plaintiffs now seek to appeal to this Court.

Counsel for the defendant-respondent raised the preliminary objection that, in this case, there is no right of appeal to this Court by reason of sections 4 and 3 of the West African Court of Appeal Ordinance, Chapter 5.

By section 4 it is enacted that:—

. ” 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;
2. Where the Divisional Court has reversed or materially altered the decision of the Magistrate the Divisional Court shall give leave to appeal
3. from its decision upon the like terms and subject to the like conditions as if the decision had been given^–in a suit or matter originatingin.suchDivisional Court.”
4. By section 3 it is enacted that
5. ” An appeal shall lie to the Court of Appeal from a Divisional Court (sitting in its original jurisdiction) in the following cases:-
6. ” (1) From all final judgments and decisions given in respect of a claim exceeding the sum of one hundred pounds . . . “
7. The contention of Counsel is that by reason of the provisions of paragraph (2) of section 4 an appeal to this Court in the circumstances therein referred to lies only in such cases as an appeal would lie from a decision of a Divisional Court sitting in its original jurisdiction, that is to say, where judgment has been given in respect of a claim exceeding the sum of one hundred pounds.
8. Counsel for the appellants on the other hand, submitted that the words ” upon like terms and subject to like conditions ” as they appear in section 4 (2) relate only to the method of bringing the appeal and do not limit the absolute right of appeal which, as was submitted, is given by the section. He cited a decision of this Court in G. B. 011ivant Ltd. v. Vanderpuye (1) which would indeed appear to support his contention. It is to be observed, however, that in that case the claim, in point of fact, was for £121, and although the judgment given by the Magistrate was for 08 10s. Od. only, it is at least open to doubt whether the point now raised then fell for decision and whether therefore the view then expressed by this Court amounts to more than obiler dictum.
9. The point now taken on behalf of the respondent, however, raises for consideration the construction which is to be placed upon the whole section and involves a point which was certainly not dealt with directly in 011ivant v. Vanderpuye (1). In the course of the judgment of this Court in that case it was said:-
10. ” Section 4 (2) appears to give an absolute right of appeal in all cases where the Supreme Court exercising its appellate jurisdiction has reversed the decision of a Magistrate. It lays down first that such an appeal shall lie, it then makes provision as to the terms and conditions which shall be imposed.”
11. With the greatest respect for the learned Judges who then constituted this Court, I am impelled to the conclusion that they stated the law in the above sense per incuriam. In point of fact paragraph (2) of the section does not in itself give an absolute right or any right of appeal. This part of the section does no more than make certain provisions subject to which a right of appeal shall be exercised and the attention of the Court when expressing the above view does not appear to have been directed to the opening words of the section:—
12. “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 . . • “
13. In order to determine whether or not in the present case an appeal lies to this Court it is necessary to consider not only that part of the section which enacts provisions, subject to which the right of appeal shall be exercised, but to the whole section.
14. In my view, the words ” where an appeal lies therefrom under any Ordinance ” are of the utmost significance. The West African Court of Appeal Ordinance is a statute which makes general provision for appeals to this Court from the Supreme Court, but it does not purport to override any particular provisions which may appear in other ‘Ordinances in relation thereto. I do not suppose that it could be successfully contended, for instance, that the provisions of section 4 would confer any right of appeal in a ease in which by some other Ordinance it was expressly
15. enacted that no appeal should lie from the Divisional Court in some particular class of case.
16. It was because of the significance of the words to which I have drawn attention that this Court invited Counsel, in the course of the argument, to direct their attention to the interpretation which should be placed upon them. Counsel on both sides appeared to be of the opinion that the words meant ” where an appeal lies from a decision of a Magistrate to the Divisional Court under any Ordinance “. I fear that I am unable to concur. In the first place I am unable to see any reason why a right of appeal to this Court from a Divisional Court in its appellate jurisdiction should be expressed as subject to there being a right of appeal from a Magistrate to the Divisional Court. If there were no such right, then presumably no appeal to the Divisional Court would have been allowed and there would be no judgment of that Court from which an appeal would lie to this Court.
17. In the second place were it intended that this section should confer an absolute right of appeal in all cases I should have expected that it would have been expressed in some such words as
18. ” An appeal shall lie to the Court of Appeal from any decision of a Divisional Court on appeal from the decision of a Magistrate . . . “
19. On the contrary, however, the section refers not to any decision of a Divisional Court but from the decision of a Divisional Court and proceeds to indicate the decision to which it refers by adding the words ” where an appeal lies therefrom under any Ordinance “. It is by these words of limitation that the legislature in the framing of this Ordinance has avoided overriding the provisions of any particular Ordinance, expressly conferring or limiting a right of appeal.
20. It might perhaps be thought that where a right of appeal has been given by any other Ordinance it is unnecessary to use the words of section 4 ” An appeal shall lie . . . ” but again the whole section must be looked at and it will be seen that the purpose thereof is to impose certain limitations upon the manner in which shall be exercised a right conferred by any other Ordinance, that is to say, (1) by special leave, or (2) by leave upon certain terms and conditions.
21. It is my view, therefore, that the true construction of section 4 is that where an appeal lies to this Court under any Ordinance from the decision of a Divisional Court in its appellate jurisdiction it shall lie subject to the provisions of this section.
22. I am fortified in this view by reference to the analogous provision in the Nigerian Ordinance relating to appeals to this Court in that territory. By section 4 of the Nigerian West African Court of Appeal Ordinance it is enacted that
23. ” An appeal shall lie to the Court of Appeal from a decision of the Supreme Court on appeal from-
24. the decision of a Magistrate’s Court, or
25. the decision of a Native Court.
26. ” where an appeal lies therefrom u_nder any Ordinance, subject to the following provisions :—”
27. The arrangement of this section, in my opinion, of itself indicates that the words ” where an aypeal lies therefrcm under any Ordinance ” refer to the right of appeal from the decision of the Supreme Court and not from that of the Magistrate’s Court or Native Court to the Supreme Court. Turning, however, to such an Ordinance as the Nigerian Magistrates’ Courts (Appeals) Ordinance it is found that by section 12 it is provided that an appeal shall lie to this Court frcm any decision of the Supreme Court sitting as an Appeal Court from decisions of Magistrates’ Courts in civil cases. Or again by virtue of section 34 of the Nigerian Native Courts Ordinance it is provided that an appeal shall lie to this Court from the order or decision of the Supreme Court given on appeal from a Native Court of first instance. In each of these instances, under an Ordinance
28. other than the West African Court of Appeal Ordinance, an appeal lies to this Court and in each instance the right of appeal is expressed as being subject to the provisions of the Court of Appeal Ordinance, thus giving effect to section 4 which enacts the provisions subject to which the appeal shall lie.
29. I have no doubt whatever, therefore, as to the interpretation which is to be given^–the words ” where an appeal lies therefrom under any Ordinance ” in the Nigerian Ordinance and equally have no doubt that the same interpretation should be given to the same words in the analogous Gold Coast Ordinance.
30. It remains, therefore, to be considered whether under any Ordinance an appeal lies from the Divisional Court in its appellate jurisdiction in civil cases on appeal from a Magistrate. The relevant Ordinance is the Courts Ordinance (Chapter 4) Part B. Sub-part 5 of which deals with appeals to the Supreme Court from decisions of Magistrates’ Courts but in which there is no provision for a further appeal to this Court. There is likewise no such provision in Part C which deals with Magistrates’ Courts. It is noteworthy, however, that in Parts E and F provision was made for appeals to this Court from Chief Commissioners’ Courts in the exercise of their appellate jurisdiction. I have been unable to refer to any provision in the Courts Ordinance or in the Courts (Amendment) Ordinances of 1944 or 1945 or in any other Ordinance whereunder an appeal lies to this Court from a Divisional Court in its appellate jurisdiction, and in view of the construction which I place upon section 4 of the West African Court of Appeal Ordinance I am of the opinion that no such appeal lies and that this Court has no jurisdiction to hear the present appeal which should be dismissed with costs.
31. I should like to add that the conclusion to which I have come solves in a very large measure any difficulty which might be experienced otherwise in the interpretation of section 4 (2) of the Ordinance. If, as is my view, this section does not confer any right of appeal where no right of appeal exists under some other Ordinance, but merely makes provision for the manner in which is to be exercised a right given under another Ordinance, one would not expect to find, as indeed this Court in 011ivant v. Vanderpuye (1) decided there was not to be found, any limitation of the right of appeal in relation to the nature of the cause or the value of the claim. Such limitations (if any) would be found in the particular statute under which the right of appeal lies.
32. I am aware that this Court has from time to time entertained appeals from the decisions of a Divisional Court on appeal from decisions in Magistrates’ Courts in civil cases, but the question as to the jurisdiction of this Court in such cases was not, so far as I am aware, raised, save in the case of 011ivant v. Vanderpuye (1), in which case, as I have said, the Court reached a conclusion per in curiam, its attention not having been directed to the primary questions, that is to say, .what is the true construction of the earlier part of the section and whether in fact there was any right of appeal in such cases. I would add that should the legislature at any time be disposed to confer such a right of appeal I have no doubt that consideration will be given to the desirability of imposing such limitation thereon as is to be found in section 3 (1) of the West African Court of Appeal Ordinance in regard to cases originating in a Divisional Court.

Appeal dismissed.