West African Court of Appeal-Rules 10 and ll-Different times within which Application for leave to Appeal may be Entertained­ Interpretation.

The fact that a party may apply to the Court of Appeal for leave to appeal at any time within six months from the date of the judgment does not mean that he must allege any special reason for his failure to obtain leave from the Court below within the three months allowed by Rule 10.

C. ]. Kempson for Plaintiffs. S. J. S. Barlatt for Defendant.

The following judgments were delivered :-

DEANE, c.J. THE GOLD COAST COLONY.

This is an application for leave to appeal to the Court from a final judgment delivered by Tew C.J. on the 5th of March, 1931. As the date of application is the 4th of September, 1931, it will be seen that it has been made within six months of the date of judgment.

The rules limiting the time within which application for leave to appeal must be made are 10 and 11 of the Rules of the West African Court of Appeal. Rule 10 reads: "After three months from the date of a final judgment or decision application for leave to appeal shall not be entertained by the Court below," and rule 11 reads: "After six months from the date of final judgment or decision application for leave to appeal shall not be entertained by the Court," meaning the West African Court of Appeal. The time therefore within which an application for leave must be made differs accordingly as the application is made to the Court below or to this Court, and the argument has been founded on this difference that inasmuch as no good purpose can be shown for making the distinction between the two Courts it must be taken that the Legislature meant that if a litigant failed within three months to get leave from the Court below he should only be entitled to get leave, if he got it, from this Court, and it was fair, therefore, to suppose that the' Court would only grant such leave in special cases.

This argument ignores, it seems to me, the plain meaning of the language used which allows of applications being made to this Court at any time within six months, and in no wise distinguishes between such an application if made within three months and one made after that time if made within six months, and draws no distinction between the kind of leave to be granted by the two Courts. If the Legislature had in fact intended that the West African Court of Appeal should deal only with applications for special leave to appeal, it would, it seem" to me, have said so and the word" special" would have been inserted before the words "leave to appeal" in rule 11. The argument, moreover, is not well founded inasmuch as it leaves out of account section 3 of Ordinance No.9 of 1929 (as amended by section 3 of Ordinance No. 29 of 1929), which does supply a good reason for the distinction made between the two Courts. The section as amended reads " subject to the provisions of the next section an appeal shall lie to the Court of Appeal-

"(a) From all final judgments and decisions of the Supreme Court and the Circuit Court (I) given in respect of a claim exceeding the sum of fifty pounds or (II) determining directly or indirectly a claim or question respecting money goods or other property of any civil right or other matters above the amount or value of fifty pounds, and by leave of the Judge making the order but not otherwise from all interlocutory orders or decisions made in the course of any suit or matter. Provided Always that no appeal shall lie except by leave of the Court making the Order (a) from an Order as to costs only or (b) from an Order made by consent of parties. "

From this it appears that applications for leave to appal in matters mentioned in this proviso can only be made to the Court below which dealt with the matter, and it is clear that the limitation period for such applications is fixed at three months because it is desirable that such an application should be made at an early date when the matter is still fresh in the mind of the Judge so that he may deal with it adequately and not after the lapse of a period which would probably impair his ability to decide whether or no it was a case where he should grant special leave.

The argument, therefore, that this Court should only grant leave as an indulgence fails and the applicant i~> in my opinion entitled to be granted Conditional Leave to appeal, provided that he brings his case within the terms of section 3 sub-sectio.1:3 (1) and (11) of Ordinance No.9 of 1929. On the affidavit, however, that has been filed by him in support of his application, I can find no unequivocal statement showing either that the decision has been given (1) in respect of a claim exceeding the sum of fifty pounds or (2) determining directly or indirectly a claim or question respecting money goods or other property or any civil right or other matters above the amount or value of fifty pounds. At the most it may be said that the affidavit might -raise an assumption that the value of the land, the subject matter of the decision, is above the value of fifty pounds, but a mere suggestion in my opinion is not enough and the necessary fact must be clearly shown before the