Egyir Ababio V. Kwodwo Tsia & Ors (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Preliminary objection—Article 9 (2) of West African Court of Appeal Order-in-Council as amended only empowers a single Judge to act in a civil appeal when it is ” pending “—Appeal not ” pending ” until final leave to appeal has been granted, and the appeal itself actually brought.

Held : Objection sustained. Appeal not before the Court.

D. M. Abadoo, jnr., for Appellant. K. A. Korsah for Respondent.

The following joint ruling was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND YATES, J.

On this appeal being called on, Counsel for respondents has submitted that it is not properly before the Court since the orders granting conditional and final leave to appeal were made by a single Judge of the Court instead of by a Bench of three Judges. He points out that until the West African Court of Appeal Order-inCouncil 1928 was amended in 1930 there was no power vested in a single Judge, and that from that date the only power in civil cases is that conferred by the new Article 9A (2). That sub-article provides that ” a single Judge shall have power in respect of any civil appeal pending before the Court of Appeal to make any order and give any directions incidental thereto not involving the decision of the appeal.” Counsel submits that this does not confer any power upon a single Judge unless and until there is an appeal pending before the Court, and that an appeal is not ” pending ” merely because an application for leave to appeal has been filed. An appeal does not become ” pending ” until after the final leave has been granted and the appeal itself actually brought. This Court is of opinion that these submissions are sound and unanswerable. It is borne out in this view by the case of Sugden v. St. Leonards (1 P.D., p. 209), in which Mellish, L. J., said : ” Until an appeal is brought there is nothing pending ‘ before the Court of Appeal,” and also by the Indian case of Hukm Chand, C.P.C. 108, in which it was held that ” The mere applying however for, or obtaining, leave to appeal to the Privy Council cannot of itself amount to the pending

of an appeal till such appeal is actually filed, for it may happen that the parties who obtain such leave may never appeal at all.”

It follows that we must uphold the contention that the appeal is not properly before the Court. This does not mean, however, that the appellant is without opportunity to pursue his appeal. On the 10th December—well within’ time—he filed an application to this Court for leave to appeal ; that application has not yet been heard by a Court so constituted as to have jurisdiction to entertain it. It is true that in the heading of the application the appellant included the words ” Before a single Judge of Appeal.” But he was led into this error by the previous practice in this Court in this colony, and we should not on that account refuse him a hearing before a competent tribunal.

We are such a tribunal and we are prepared now to hear the application if appellant’s Counsel so requests.