R. S. BLAY & 2 ORS
V.
J. M. SOLOMON

JELR 80592 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
 · 
Other Citations
1946-49 12 WACA 175-176
CORAM
HARRAGIN, C.J. (GOLD COAST), VERITY, C.J. (NIGERIA), LUCIE-SMITH, C.J. (SIERRA LEONE)
Core Terms Beta
judgment
order
plaintiff
african court of appeal ordinance
case
parties
respondent
account of rents
altrincham urban district council
cases
defendants
final judgment
further reference
interlocutory decision
rights of the parties
sale
african court of appeal rules
application of these principles
course of a written decision
court orders
date of the decision
determination
determination of the plaintiff
ex parte moore
final determination of these matters
findings of fact
formal order
further directions
hearing of the defendants
interlocutory judgment
learned trial judge
le grange
licensed auctioneer
nature of the use
number of cases
present case
public auction
real test
second defendants possession of certain premises
special leave
status of the parties
terms of the decision
trial judge
written judgment of the court

The following, judgment was delivered: Verity, C.J. In this case a preliminary objection has been taken by Counsel on behalf of the respondent, who submits that the judgment appealed from is an interlocutory judgment and that the appeal is out of time, not having been brought within fourteen days from the date of the decision as required by rule 11 (2) of the West African Court of Appeal Rules, 1937.

In this, as in other cases, as would indeed appear to be the practice, no formal order or judgment has been drawn up and the terms of the decision have therefore to be sought in the written judgment of the Court below.

The action is one in which the plaintiff seeks to recover from the first and second defendants possession of certain premises, an account of rents and profits, partition, or, in the alternative, sale. During the hearing of the defendants’ case the learned trial Judge ordered the joinder of the co-defendant and the hearing then proceeded.

In the course of a written decision, the learned Judge dealt at length with the transactions which had given rise to the proceedings and in which all parties .

Now rule 14 (1) of the West African Court Appeal Rules, 1950.*Page 176thereto were in some degree involved. After stating certain findings of fact, he proceeded:-

“I do grant to the plaintiff an order that an account as between himself alone and the co-defendant shall be filed in this Court within thirty days.

“By the nature of the use to which these buildings have been put an order for partition would be impracticable, as would be recovery of possession.

“I do accordingly direct that the land, buildings and equipment as enumerated in the inventory. shall be sold by public auction and that the proceeds of the sale shall be paid into Court to await further directions. The licensed Auctioneer shall be nominated by the plaintiff and approved by the Court. Costs to be taxed.”

A number of cases were cited by Counsel on each side, bearing upon the distinction between an interlocutory and a final judgment. We find it necessary to refer to but three, all of which were cited in the case of Krakue v. Mensah (1), a case decided by the Full Court on this point.

In Standard Discount Co. v. Le Grange (2) Brett, L.J., said:- “No order, judgment or other proceeding can be final which does not at once affect the status of the parties for whichever side the decision be given.”

In Bozson v. Altrincham Urban District Council (3) in a passage cited with approval by Swinfen Eady, L.J., in M. Isaac 0. Sons Ltd. v. Salbstein.& Anar. (4) Alverstone, L.C.J., said:-

It seems to me the real test for determining this question ought to be: does the judgment or order, as made, finally dispose of the rights of the parties?”

In Ex parte Moore, In re Faithful (5), Brett, M.R., said:-

“If the Court orders something to be done according to the answer to the enquiries, without any further reference to itself, the judgment is final.”

We think that the application of these principles to the present case is conclusive.

The terms of the judgment of the Court below do not at once affect the status : of the parties, or indeed of 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 the 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. The appeal was not brought within the time nor with the special leave of the Court as required by section 3 (3) of the West African Court of Appeal Ordinance (Cap. 5). It is not properly before the Court and is dismissed with costs assessed at £22 10s. 6d.

We would observe that the terms of the judgment or order are unusual and in the circumstances unfortunate in that it requires the sale of the property before the rights of all the parties or their interests therein have been finally determined. Should the final determination of these matters be subject to reversal on appeal the irrevocable steps resulting in the sale of the land would have been taken upon the interlocutory order and the rights and interests of the parties have been prejudiced thereby. This course of proceeding is not one, therefore, which this Court can commend.

Appeal dismissed.