Decision of the Court upon
preliminary objections taken on
behalf of Respondent.
Appeal to West African Court of
Appeal from decision of
Divisional Court reversing or
materially altering decision of
Magistrate lies under section
4 (2)
of West African Court of Appeal
Ordinance, irrespective of
amount of' claim-Purely
technical objection will not be
allowed to prevent Court doing
substantial justice.
Held: Appeal to be heard upon
its merits.
The facts are sufficiently set
out in the judgment.
Frans Dove
for Appellants.
J.
A.
Coussey
(with him
K. A. Bossman)
for Respondent.
The following joint decision was
delivered:-
YATES, ACTING C.J., GOLD COAST,
KINGDON, C.J., NIGERIA,
AND WEBBER, C .. L, SIERRA
LEONE.
On this appeal being called on
the respondent has taken two
preliminary objections that the
appeal is not properly before
the Court.
The material facts are: - .
On 8th March, 1934, plaintiffs
issued a writ in Police
Magistrate's Court, Accra,
claiming £121 damages.
On 20th March, 1!)35, plaintiffs
obtained judgment for £88 10s.
Defendant appealed to Divisional
Court.
On 12th .June, 1935, the
Divisional Court (Deane, C.J)
allowed the appeal and ordered
judgment to be entered for the
defendant.
On 5th October, 1.935,
plaintiffs applied
ex parte
to the West African Court of
Appeal for special leave to
appeal from the judgment of the
Divisional Court. The
application was heard by Yates,
Acting C.J. sitting as a single
Judge of Appeal and the
plaintiffs were granted special
conditional leave to appeal on
terms named.
On the 6th November 1935, the
plaintiffs having fulfilled all
G.
B. the conditions were granted
final leave to appeal to this
Court on Ollivant,
The objections now taken on
behalf of the respondent are:-
(1) The Divisional Court dealt
only with a judgment of the
Police Magistrate for £88--10s.
and appeal would only lie to
this Court if the amount had
exceeded £100.
(2) The appellants sought and
obtained
special
leave to appeal; they should
have sought merely leave to
appeal and that is what they
should have been granted (if
anything).
As to the first:-
the defendant-respondent
contends that the combined
effect of sections 3 and 4 of
the "\Vest African Court of
Appeal Ordinance, 1933 (No. 11
of 1935) is to give an appeal to
this Court from a decision of a
Divisional Court reversing the
decision of a Magistrate only in
cases where the subject matter
in dispute is over £100 in
value, and he relies upon the
judgment of this Court in the
case of
Koney versus Union Trading
Company
(delivered21st May, 1935, not
yet reported) as showing that
the amount of the subject matter
in dispute is decided not by
reference to the claim but by
reference to the amount for
which judgment was obtained in
the Court of first instance. But
the decision in that case turned
on the wording of the Royal
Order-in-council governing
Appeals to the Privy Council.
Here the question turns on the
wording of sections 3 and 4 of
Ordinance No. 11 of 1935 which
is quite different. The cases
are not on all fours and the
authority quoted is valueless as
a precedent in the present
argument.
The material parts of the
sections of the Ordinance in
question are:-
"4. 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:-
