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G. B. Ollivant, Ltd. V. C. A Vanderpuye (1935) LJR-WACA

G. B. Ollivant, Ltd. V. C. A Vanderpuye (1935)

LawGlobal Hub Judgment Report – West African Court of Appeal

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. H. 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.J., 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, 1935, 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, 1935, 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 term.. named.

On the fith November, 1935, the plaintiffs having fulfilled all the conditions were granted final leave to appeal to this Court on their ex parte application.

See also  Chief Efiong Enebiet Efiom Duke & Ors V. Etubom George Duke Henshaw Of Henshaw Town, Calabar (1940) LJR-WACA

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 West 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 (delivered 21st 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 :—

See also  Rex V. Kwaku Owusu Alias James Koomson (1942) LJR-WACA

” (1)*

” (2) Where the Divisional Court has reversed or

materially altered the decision of the Magis” trate the Divisional Court shall give leave to ” appeal from its decision upon the like terms ” and subject to the like conditions as if the ” decision had been given in a suit or matter ” originating in such Divisional Court,” and

” 3. An appeal shall lie to the Court of Appeal from a ” Divisional Court (sitting in its original jurisdiction) in the ” following cases :—

” (1) from all final judgments and decisions given in ” respect of a claim exceeding the sum of one ” hundred pounds or determining directly or ” indirectly a claim or question respecting ” money, goods, and other property or any civil” right or other matter above the amount or ” value of one hundred pounds.”

•••

The contention of the respondent is that the words ” upon the ” like terms and subject to the like conditions ” etc in section 4 (2) refer back to section 3 (1) and that it is a condition precedent to the grant of leave to appeal that the claim or question in issue must be of a value of over £100. We do not agree with that contention. Section 3 sets out the cases in which an appeal lies when the Supreme Court is exercising its original jurisdiction, it does not deal with the terms and conditions which are to be imposed upon an appeal being brought. Section 4 (2) appears to give an absolute right of appeal in all cases where the Supreme Court, exercising its appellate jurisdiction, has reversed the decision of a Magistrate. It lays down first that such an appeal shall lie, it then makes provision as to the terms and conditions which shall be imposed. These terms and conditions are not to be found in section 3 of the Ordinance but in the West African Court of Appeal Rules. These rules provide also for the grant of leave to appeal by this Court, as was done in the present appeal. For these reasons we are of opinion that the first preliminary objection fails.

As to the second objection, the contention of the respondent appears to be correct, but it is of a purely technical nature, and this Court will not refuse to attempt to do substantial justice between the parties upon a pure technicality.

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We have accordingly decided to hear the appeal upon its merits.

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