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  • appeal
  • 1960-11-07
  • GLR 213-218
  • Print



Practice?-Local courts?-Appearance by defendant?-Subsequent failure to appear?-Whether judgment given ex parte?-Native Courts Ordinance Cap. 98 s. 51?-Refusal by trial court to review decision?-Whether interlocutory or final decision.


Hearing in this case began in the native court on 22nd December, 1958, in the presence of both parties and continued on the following day the parties [p.214] again being present. Witnesses for the plaintiff were called and cross-examined by the defendant. There were subsequent adjournments until 31st December, 1958 when the court in the absence of the defendant "without excuse" gave judgment for the plaintiff. Copy of the judgment was served on the defendant, who filed a motion under Cap. 98 section 51 to have it set aside. This motion was dismissed by the trial court on 3rd February, 1959 and the judgment of 31st December, 1958 was confirmed. The defendant appealed to the Land Court.


APPEAL against a decision of the Manya-Krobo Native Court "A" of February 3, 1959, confirming a judgment given in favour of the plaintiff on December 31, 1958, and dismissing a motion by the defendant to have that judgment set aside.

(His lordship referred to the facts and continued).

It was in the foregoing circumstances that on the appeal coming up for argument before me on 21st October, 1960, I addressed Dr. Danquah as follows:?-

"It appears to the court that the final judgment of the trial court was that dated 31st December, 1958, see Muffat v. Tetteh Kpeshie II (14 W.A.C.A. 44) and that the application to set aside that judgment which was disallowed and the judgment of 31st December, 1958 confirmed, was interlocutory and order appealable by special leave which has not been obtained. Moreover, the appeal lies to the Magistrate's Court. Can you satisfy the court that is not the legal position?"

Learned counsel then submitted firstly that the decision of 3rd February, 1959, was not interlocutory but final; and secondly that the decision of 31st December, 1958, was an ex parte decision which was not [p.215] appealable until application to set it aside had been made and refused as provided by section 51 of the Native Courts Ordinance Cap. 98.

It falls therefore, to examine learned counsel's contentions. It will be more convenient, however, to deal with them in the reverse order.

Firstly then, is it correct to say that the decision of 31st December, 1958, was an ex parte judgment? The designation of or reference to, a judgment, where it is given when a party has not appeared, as ex parte judgment, is a legacy from section 93 of the former Native Administration Ordinance, (Cap. 76 of the 1930 Revision of the Ordinances) which provided that:?-

"No appeal shall lie from a judgment order or decision given or made by a Tribunal ex parte, the defendant or respondent not having appeared."

When the Native Administration Ordinance was replaced by the Native Courts Ordinance, (Cap. 98 in the 1951 Revision of the Ordinances,) section 51 reproduced the same provision but with the words ex parte omitted.

It will be observed that in the old Ordinance as well as the new, the crucial words are:?-"The defendant or respondent not having appeared."

It is scarcely necessary to point out that the words "appear" and "appearance" as used in English rules of procedure, have a totally different meaning from their meaning in our former local rules borrowed mainly from Indian sources. A writ of summons issued in the English High Court specifying a period within which appearance might be entered, does not require the defendant to attend court on a specified day. Here on the other hand, until the introduction of our Civil Procedure Rules in 1954, the Writ of summons following Indian procedural enactments and rules, was framed requiring the defendant to attend on a named day, and in such a case his personal attendance was required in the court on the named day, and appearance therefore meant his personal attendance. It was that form of appearance which was prescribed for the native tribunals and/or courts, and that which was envisaged and intended by the provisions to which reference has been made.

The position is put beyond doubt by reference to the Indian enactments and the cases and commentaries under and concerning them. For example, Order IX, rule 1 of the Indian Civil Procedure Code, 1908, dealing with "Appearance of Parties and consequences of Non-appearance " is in the following terms: ?-

"On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall be heard unless the hearing is adjourned to a future day fixed by the Court".

And see Woodroffe and Ameer Ali's Civil Procedure in British India, 2nd Ed. pp. 747-751 and Mullah's Code of Civil Procedure 12th Ed. Vol. I, p. 163. [p.216]

Therefore, not only is the position made clear beyond a shadow of doubt by the provisions of the Indian Civil Procedure Code and the cases and commentaries thereon that the judgment of the 31st December, 1958, of the native court was not ex parte or one given when the defendant had not ?"appeared?" so as to bring it under section 51 of the Native Courts Ordinance Cap. 98, but there is direct local authority in support of the view that it is not an ex parte decision. That authority is Muffat v. Kpeshie II (14 W.A.C.A. 44).

In the light, therefore, of the Indian authorities as well as the direct local authority on the point, it is obviously quite impossible, with due respect to learned counsel, to sustain his contention that the judgment of 31st December, 1958, in the appeal with which we are now concerned, was a decision or judgment given when the defendant had not appeared and therefore subject to section 51 of the Ordinance (Cap. 98).

That brings us to the second contention that the decision of 3rd February, 1959, is not an interlocutory but a final decision. As to this also, I am satisfied that learned counsel is confronted by direct authority against his contention. This case is Bansah v. G. B. Ollivant Ltd. (14 W.A.C.A. 408) to which I called counsel's attention during the course of his argument.

It is directly in point, because in that case also a final judgment had been given and the aggrieved party moved for an order to review, vary or discharge same and his application to set aside was refused. He thereupon, without obtaining special leave filed formal notice of appeal against the decision refusing review, and objection was taken that the appeal was not properly before the court. Foster-Sutton, P. delivering the judgment upholding the objection, said: ?-

?"If the learned trial Judge had agreed to review his judgment, Order 41, that decision could clearly not have finally disposed of the rights of the parties, and a refusal to review does not because it is the judgment which is the subject of the application for review which finally disposed of the rights of the parties, not the trial Judge?'s refusal to review it.

We accordingly hold that the refusal to review was an interlocutory decision and special leave to appeal from it not having been obtained . . . this appeal is not properly before us".

See also the case of Nimoh (substd. for Sintim) v. Kwatrang (unreported).

Learned counsel for the appellant has cited and expressed reliance on two cases Blay and Others v. Solomon (12 W.A.C.A. 175) and Ababio and another v. Turkson (13 W.A.C.A. 35) as supporting his contention that the decision or order of 3rd February 1959, was not an interlocutory order as suggested by the court but a final order. They are both cases in each of which an order for accounts was made and it was sought to appeal, inter alia, from that decision or order for accounts to be taken.

There are, however, differences in the two cases, both of which are strikingly illustrative of the distinction between a final decision on the one hand and an interlocutory one on the other. Blay and Others v. [p.217] Solomon (12 W.A.C.A. 175) was a case in which the court was called upon to determine the right or share of admitted co-owners in property, and in order to be able to determine the plaintiff's rights and the defendants' corresponding liability, the trial judge ordered accounts of rents collected already to be taken and the property which could not be physically partitioned to be sold before he could determine the rights of the parties. Verity, C.J. (Nigeria) in respect of the judgment in that case pointed out when giving the judgment of the West African Court of Appeal as follows: ?-

?"The terms of the judgment of the Court below do not at once affect the status of the parties, or indeed any of them, for there is no order consequent upon the enquiries into the accounts, no determination as to the distribution of the proceeds of sale, no indication of the rights or interests of the parties or any of them in relation thereto, no determination of the plaintiff's claim against either the first or second defendant and no order as to by whom or to whom the costs when taxed are to be paid. There is no order for anything to be done without further reference to the Court, and in no sense does it appear from the judgment that the rights of the parties or any of them are finally disposed of.

We have no doubt whatever that the decision appealed from is an interlocutory decision". (ibid at p. 176).

By contrast Ababio v. Turkson (13 W.A.C.A. 35) was a case in which the court was called upon to determine whether the defendants were accounting parties at all, vis-a-vis the plaintiff, and the decision sought to be appealed from had finally determined the right of the plaintiff and the corresponding liability of the defendants, that the defendants were accounting parties to the plaintiff.

Blackhall, P., in his ruling in that case said: ?-

?"The appellant's claim was for payment at the rate of a shilling in the on rents and royalties under certain mining leases.

Coussey, J., held he was not entitled to anything, but this Court held that he was entitled to the amount which ought to be paid to him under his claim and it was only left to the Court below to work out by arithmetical calculation. In my opinion, therefore, on the authorities cited the decision of this Court was a final one, and I think conditional leave should be granted". (ibid at p. 36).

It thus becomes apparent that the two cases cited by learned counsel for the appellant, do give a most striking and vivid illustration of that distinction, undoubtedly often difficult to discern, between a final and interlocutory decision or judgment.

However that may be, it seems to me, with due deference to learned counsel, that their citation in connection with this appeal appears to be misconceived. Neither case being one in which the trial court had refused to review and discharge, set aside, and/or vary a final judgment so that the question of an appeal against that refusal arose for consideration [p.218] it appears difficult, will the utmost deference to learned counsel for the appellant, to see the relevancy of either case to the particular facts of the case with which we are concerned.

As to the facts of this particular case, I have already referred to two authorities binding on me which appear to be on all fours with this particular case, and I am therefore obliged to reject the contentions of learned counsel for the appellant and dismiss this appeal as not being properly before this court, for the reasons hereinbefore stated.


<P>Appeal dismissed.</P>

Plaintiff / Appellant


Defendant / Respondent



(1) Muffat and Others v. Kpeshie II and Another 14 W.A.C.A. 44;

(2) Bansah v. G. B. Ollivant, Ltd. 14 W.A.C.A. 408;

(3) Nimoh (substd. for Sintim) v. Kwantreng and Another W.A.C.A. 28th March, 1955, unreported;

(4) Blay and Others v. Solomon 12 W.A.C.A. 175;

(5) Ababio and Another v. Turkson 13 W.A.C.A. 35.

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