Kwaku Nyako Of Brukruwa V. A. E. Akwa Of Koforidua Yaw & Ors (1949)
LawGlobal Hub Judgment Report – West African Court of Appeal
Consolidated Motions—Powers of a single Judge of the West African Court of Appeal.
The powers of a single Judge of the West African Court of Appeal are limited by section 7 of the West African (Appeal to Privy Council) Order in Council, 1949, which re-enacts (inter alia and with the same numbers) Articles 3 (a), 7 and S of the West African (Appeal to Privy Council) Order in Council, 1930.
Case referred to:
(1) Egyir Ababio v. Kula Amissah, 3 W.A.C.A. 24.
Akyeampong for Appellant (defendant at first instance).
Lokko for Respondents (plaintiffs at first instance).
The following judgment was delivered:
Wilson, C.J. Two motions filed in this case have been consolidated for hearing. The first, dated the 14th June, 1949, filed by the appellant was for (i) an order for conditional leave to appeal to the Privy Council and (ii) an order for stay of execution. The second, filed by the respondents and dated the 26th July, 1949, was for (a) an order for payment of the costs awarded to the respondents in the Native Court, the Land Court and the West African Court of Appeal; (b) an order for the deposit in Court of a specified sum stated to be proceeds of the crops of the cocoa farms in dispute; (c) an order for an injunction restraining entry by the appellant or his agents on the farms; and (d) an order for the appointment of a receiver and manager pending the hearing of the appeal to the Privy Council.
Conditional leave to appeal on the usual terms and conditions was granted at the hearing of the first motion on the 14th July, 1949, but in view of representations and objections made by the respondents the motion for stay of execution was ordered to stand over for hearing later. Subsequently, before that hearing, the second motion was filed and it was agreed that the two motions should be consolidated for purposes of hearing.
After full consideration of all the arguments put before me by Counsel for both parties I see no good reason for granting a stay of execution of the judgment. The respondents have carried their case successfully through three Courts and I do not think in all the circumstances of the case I would be justified in keeping them any longer out of property to which the Courts have given them a -declaration of title. In order to safeguard the interests of all parties, however, I order, under Article S of the West African (Appeal to Privy Council) Order in Council, 1930, that before the execution of the judgment the respondents shall enter into good and sufficient security, to the satisfaction of the Court, for the due performance of such order as His Majesty in Council shall think fit to make thereon.
As regards the second motion, the decision I have made on the first motion leaves it open to the respondents to execute their judgment in respect of the costs awarded to them in the Courts which have already dealt with the case, so no further order as regards part (a) of the motion is necessary. It was suggested that I should make it a condition of granting leave to appeal that all costs already awarded should be paid. I do not think I have any power to do this. As regards
parts (b) , (c) , and (d), I am of opinion that I have no power or jurisdiction at this stage to grant any such orders as are sought therein. The powers of a single Judge of the West African Court of Appeal are set out in Article 7 of the above-mentioned Order in Council. His powers are:—
” .. . to hear and determine any application to the Court for leave to appeal under Article 3 (a), and generally in respect of any appeal pending before His Majesty in Council to make such other Order and to give such other directions as he shall consider the interests of justice or the circumstances of the case to require .. “
At the moment the position as regards this case is that conditional leave to appeal to the Privy Council has been granted. But, in my opinion, that does not bring the proposed appeal to the Privy Council into being. Until the conditions imposed have been complied with by the appellant to the satisfaction of the Court, and final leave has been granted and the appeal filed it cannot be said that an appeal is ” pending ” within the scope of Article 7. I am fortified in this opinion by the ruling of this Court in Egyir Ababio v. Kula Amissah 6. Another (1). That decision involved the interpretation of Article 9A (2) of the West African Court of Appeal Orders in Council, 1928-35, Consolidated. After consideration of a number of authorities it was held in that case that :—
” An appeal does not become pending until after the final leave has been granted and the appeal itself actually brought.”
That ruling is, in my opinion, equally applicable to the interpretation of the words ” any appeal pending ” in Article 7, which I am considering.
I accordingly rule that, as there is at present no appeal pending in the present case, the respondents’ motion for the various orders mentioned is at best premature and must be refused. As both motions have been refused any costs awarded would cancel each other out, so I make no order for costs on either motion.
Motions refused.
