PETER AWOONOR RENNER
V.
CAPTAIN THENSU AND OTHERS

JELR 81407 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
 · 
Other Citations
1936-39 1 WACA 77-79
CORAM
HALL, J.
Core Terms Beta
motion
appeal
court
mr. renner
case a
full court
others
case
case b
16th april
circumstances
mr. renner's absence
question
section
1st november
22nd section of the judicature act
23rd may
appeal court
clear answer
commencement of this order
cost of the appeal record
days of the old court of chancery
following note
following provisions
late insolvent debtors court
manner of procedure of the said court
medical certificates
mind
motions mr. renner
mr. lokko of counsel
next sitting of an appeal court
non-appearance of mr. renner
regards case a. mr. renner
said order
scotch call
sitting of the full court
specified time
surrounding circumstances
times
view of the fact
west african court of appeal

HALL, J.

In both these motions Mr. Renner moved in person.

In Renner v. Thensu and others (hereinafter called case A) the only Defendant-Respondent now concerned is Kudjo Amuaku. The motion was to the effect that the appeal struck out by the Full Court on 23rd May, 1929, in Mr. Renner's absence, should be to relisted on terms. The motion was filed on 16th April, 1930.

In Renner v. Bampoe and others (hereinafter called case B) an the only Defendant-Appellant now concerned is Ohene Bampoe. The motion was to the effect that the judgment and proceedings herein had in 1929 been set aside and the appeal reheard, Mr. Renner not having been present. The motion was filed on 4th July, 1930.

When these motions came on for hearing before this Court the question was raised whether in view of the fact that in case A the appeal was struck out by the Full Court and in case B the appeal was heard by the Full Court, the present Court had jurisdiction to entertain these applications. Our decision on this point was reserved and the merits were argued.

The Order-in-Council dated 1st November, 1928, which set up the West African Court of Appeal came into force on 1st March, 1930 and therefore except as regards one or two special matters the Full Court ceased to exist. Section 14 (3) of the said Order-in-Council reads as follows :-

“All appeals matters and proceedings whatsoever which shall be pending at the commencement of this Order shall be continued before the Court of Appeal according to the form and manner of procedure of the said Court of Appeal,”

The questions then are (a) was the appeal in Case A, which The was struck out for non-appearance of Mr. Renner, and (b) was the and ors. appeal in Case B, which was heard and allowed in Mr. Renner's absence “pending” on 1st March,1930?

A clear answer to this question is found in the judgment of Jessel M.R. in Fordham v. Clagett. 20 Ch.D. at page 653. The passage runs “Then the 15th section says: For the purpose of winding up and terminating all matters which at the commencement of this Act may be pending in the late Insolvent Debtors Court, etc., the following provisions shall have effect. What is the meaning of the word I pending'? In my opinion it includes every insolvency in which any proceeding can by any possibility be taken. That I think is the meaning of the word I pending' ... A cause is said to be pending in a Court of Justice when any proceedings can be taken in it. That is the test. If you can take any proceeding it is pending. Pending' does not mean that it has not been tried. It may have been tried years ago. In fact in the days of the old Court of Chancery, we were familiar with cases which had been tried fifty or even one hundred years before and which were still pending. Some times, no doubt, they require a process which we call reviving, but which the Scotch call waking up; but nevertheless they were pending suits, and all such causes have been transferred to the High Court of Justice under the words causes which shall be pending' in the 22nd section of the Judicature Act 1873, when the word pending' is used in this large sense.”

It is therefore necessary to consider Mr. Renner's applications on the merits.

First as regards Case A. Mr. Renner filed an affidavit in support of his application setting forth reasons for his inability to attend Court or instruct counsel (he at the time being at Sierra Leone). Two medical certificates are exhibited to his affidavit one of which is undated. The other is dated 16th May, 1929 and recommends that Mr. Renner should take a further rest of at least three months before resuming any active work.

Neither of the certificates appears to go the length of Mr. Renner's suggestions as to his state of health as set forth in the affidavit. It would seem that Mr. Lokko of Counsel was looking after Mr. Renner's affairs during his absence from the Colony, and on the day that the appeal was struck out Mr. Lokko informed the Court that he had no instructions from Mr. Renner and asked leave to retire, which he was allowed to do. It was clearly laid down at the sitting of the Full Court in 1929. of which I was a member, that, subject to emergencies, that would be the last sitting of that Court and that the next sitting of an Appeal Court in the Colony would be that of the West African Court of Appeal. That sitting commenced on 1st May, 1930.

Now Mr. Renner in this Case filed his motion on 16th April,1930 so that on the question of time he cannot be held to be guilty of any neglect as his motion could not be heard before the May Sessions.

The reason why the motion has not been dealt with until ; r now is due to the death of one of the respondents and the desire to substitute somebody for him. On the other hand I am not at all satisfied that Mr. Renner could not have instructed Counsel in May, 1929 if he had wished, despite the state of his health. In all the circumstances I think the proper course is for Mr. Renner to be allowed to relist his appeal in Case A provided that within seven days from date he pays to Respondents £10 10s. that is, the costs awarded when the Appeal was struck out less the cost of the appeal record (if not already paid) and also £4 4s. the costs of this motion. If payment is not made within the specified time the order of the Full Court to stand.

The position as regards Case B is very different.

The surrounding circumstances are the same as in Case A but Mr. Renner did not file his motion herein until 4th July, 1930. The May sittings of this Court closed on 5th July of this year and on that day the motion came before the Court when the following note appears on the record “Motion adjourned to next Appeal Court this motion having been made at the last moment in this Appeal Court when Court about to close.’

It is to my mind absolutely inexcusable that there should have been such a delay in filing the motion and in the circumstances I am clearly of opinion that the Motion in Case B must be refused.

The Defendant-Appellant Bampoe who appeared in person. before us must have the costs of this motion assessed at £1.

DEANE, C.J. The Gold Coast Colony.. I concur. SAWREY-COOKSON, J.