Kpodo V. Swiss African Trading Co. Ltd. (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for damages for wrongful determination of services brought inOpinion ofMagistrate’s Court—The Magistrate states a case for the opinionSupremeCourt.of the supreme Court—Opinion given and appeal therefrom madeto appeal Court—Preliminary objection that no appeal lies.

Held : The Supreme Court was not sitting either in its original jurisdiction or on appeal, and therefore no appeal lay from it to Appeal Court.

Appeal dismissed.

The facts are sufficiently set out in the judgment.

E. C. Quist (with him A. W. K. Thompson) for the Appellants. j. H. Coussey (with him C. S. Acolatse) for the Respondents. The following judgment was delivered :-

KINGDON, C. J., NIGERIA.

In this case the plaintiff sued the defendants in the District Magistrate’s Court at Accra for £100 damages for wrongful determination of the plaintiff’s service by the defendants. The District Magistrate gave judgment for the defendants, but on review made his judgment subject to the opinion of the Divisional Court on a case stated by him on the question whether section 8 of the Master and Servants’ Ordinance (Cap. 101) applied to the contract between the parties, he himself being of opinion that it did and basing his judgment thereon. The section under which he stated the case is No. 47 of the Courts Ordinance, which reads as follows :-

” 47. In addition to and without prejudice to the right of appeal conferred by this Ordinance any magistrate may reserve for consideration by the Supreme Court on a case to be stated by him, any question of law which may arise on the trial of any civil suit or matter and may give any judgment or decision subject to the opinion of the Supreme Court and the Supreme Court shall have power to hear and determine any such question.”

It is clear that a case stated under this section does not operate as an appeal to the Divisional Court and that the only duty of the Divisional Court thereon is to determine, i.e. state its opinion upon, the question submitted to it and to apportion the costs of the proceedings before it.

On the case stated coming before the Divisional Court, Yates, J., held the opinion that section 8 of the Master and Servants’ Ordinance did not apply and, after giving reasons, said, ” I am of opinion that the learned Magistrate was wrong in deciding as he did, and the case must be sent back to the Court below for damages to be assessed.

Costs in this Court and in the Court below to be. paid by the defendants. Costs in this Court to be taxed.”

The defendants have appealed to this Court from the decision of the Divisional Court, and on the appeal being called, the respondents’ Counsel has taken the preliminary objection that the appeal is not properly before the Court, and I am of opinion that this objection must be upheld on the ground that this Court has no jurisdiction to entertain the appeal. The cases in which appeal lies to this Court in civil cases are set out in sections 3 and 4 of the West African Court of Appeal Ordinance, 1935 (No. 11 of 1935). Section 3 sets out• when an appeal lies from a Divisional Court sitting in its original jurisdiction. In the present case the Divisional Court was clearly not sitting in its original jurisdiction, so that that section has no application. Section 4 sets out when an appeal lies from the decision of a Divisional Court on appeal from a decision of a Magistrate. But in this case the Divisional Court was not sitting on appeal from a decision of a Magistrate, so that that section gives no jurisdiction. There is no other section

ring jurisdiction and therefore there is no appeal direct to this Court from the opinion of a Divisional Court expressed upon a case stated.

I am therefore of opinion that the appeal should be dismissed with costs.

PETRIDES, C.J., GOLD COAST.

I concur.

WEBBER, C.J., SIERRA LEONE.

I concur.