President.
The Appellant moved the Divisional Court, Accra for an Order calling upon the District Commissioner, Accra, as Execution Creditor in the above case, the District Magistrate, Accra, and the Sheriff, Accra, “To SHOW CAUSE WHY AN ORDER FOR WRIT OF PROHIBITION should not issue to prohibit them from proceeding any further in the above suits against the said ROBERT DANIEL PATTERSON the applicant herein, and in particular from proceeding into execution by attaching the real and personal properties of the said Applicant-AND for such further Order as to the Court may seem meet.” Upon that motion the learned Judge in the lower Court delivered a “judgment” refusing the writ.
In our view that was a final “judgment” since it finally disposed of the issues between the parties upon the motion, and would equally have done so if the writ had been granted.
The motion, on the face of it, does not disclose the value of property in issue, but the proceedings show that the sum which is recoverable against the Appellant amounts to £3 18s. 9d. only. It is, however, common ground that in order to recover that sum real property of the value of more than £100 has been attached. We are, therefore, of opinion that an appeal lies from the “judgment” of the Divisional Court under subsection (1) of section 3 of the West African Court of Appeal Ordinance Cap. (5), since the “judgment” determines a question respecting property above the value of £100. We hold that the “judgment” is not an interlocutory one for which special conditional leave is necessary under subsection (3) of that section.
Counsel for the Appellant, however, took the view that the “judgment” was interlocutory and applied for special conditional leave under subsection (3). The learned Judge in the Court below took the same view and granted special leave, but, by what seems to be a slip of the pen, he purported to grant that special leave under subsection (1) instead of subsection (3). Upon the appeal being called on before this Court, Counsel for the Respondent has submitted that the Court has no jurisdiction to entertain the appeal contending (a) (rightly, in our view) that the appeal does not lie under subsection (3) of section 3 of Cap. 5, and (b) (wrongly, in our view) that it also does not lie under subsection (1) of that section.
We agree, however, that the appeal has got before the Court in a wholly irregular manner since the appeal proceedings started with an application for, and grant of, special conditional leave to appeal, instead of merely conditional leave under subsection (1) , of section 3. But this Court has held before that such a technicality was not sufficient to prevent this Court from hearing an appeal and endeavouring to do substantial justice between the parties. (G. B. Ollivant, Ltd. v. C. A. Vanderpuye, 2. W.A.C.A., 368.)
We have accordingly decided to hear the appeal upon its merits.