Appeal Court. I December, 1936.
Appeal from Opinion of Supreme
Court
Defendants-Appellants.
Claim for damages for wrongful
determination of services
brought in Magistrate's
Court-The Magistrate states a
case for the opinion of the
supreme Court-Opinion given and
appeal therefrom made to 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, ].,
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 giving 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.]., GOLD COAST.
I concur.
WEBBER, c.]., SIERRA LEONE.
I concur.
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