Application for special
conditional leave to appeal
under rule 16 of West African
Court of Appeal Rules 1937-Delay
in filing
applicat1:on--Condit1:ons
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, Q.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 3. 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
CommiBBioner'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. 5.
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
5.
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:-
(a)
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.
(b)
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.
(c)
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.
