KWANSAH vs. JUBAH [1986]DLHC779

Date	1986-12-09
Suit No.
Citation No.	[1986]DLHC779

AMUAH J.

A. B. SAM FOR THE APPLICANT-APPELLANT.

P. K. E. DONKOR FOR THE RESPONDENT

[1986]DLHC779
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													<main id="main" class="content" style="min-height: 60rem" >KWANSAH <o:p></o:p>vs. <o:p></o:p>JUBAH <o:p></o:p>[HIGH COURT, SEKONDI.]<o:p></o:p>[1987-88] 2 GLR 64<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE
9 DECEMBER 1986<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

A. B. SAM FOR THE APPLICANT-APPELLANT. <o:p></o:p>

P. K. E. DONKOR FOR THE RESPONDENT<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AMUAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMUAH J.<o:p></o:p>This is
an appeal against an order of a learned district magistrate granting an
application by the defendant-respondent (hereafter referred to as the
defendant) praying the court to visit the locus in quo. The parties had given
evidence and closed their case, and it was then up to the district magistrate
to take down the addresses and deliver his judgment.<o:p></o:p><o:p>&nbsp;</o:p>At the
hearing of the motion, learned counsel for the plaintiff-appellant (hereafter
referred to as the plaintiff), Mr A.B Sam, submitted that the identity of the
land and its physical features are not in dispute and that the learned district
magistrate erred in granting the order: see the case of Asare v. Donkor and
Serwah II [1962] 2 G.L.R. 176, S.C. He further submitted that in paragraph (5)
of the statement of claim there was a description of the boundaries of the land
and this was admitted by paragraph (4) of the statement of defence. He urged
the court to set aside the ruling for judgment to be delivered.<o:p></o:p><o:p>&nbsp;</o:p>Mr Donkor
in his reply to the points raised by learned counsel for the plaintiff urged
the court to dismiss the appeal. He submitted that since the ruling of the
learned district magistrate was an interlocutory decision or order leave to
appeal ought to have been obtained under section 19 (4) of the Courts Act, 1971
(Act 372) and that since this was not obtained before this appeal was made,
this court is not seised with jurisdiction to entertain the appeal: see Yevu v.
The Republic [1972] 2 G.L.R. 148. He contended that if the learned district
magistrate visited the locus he would arrive at the truth: see Karletse-Panin
v. Nuro [1979] G.L.R. 194, C.A. He submitted that there was want of
particularity and it was incumbent on the learned district magistrate to visit
the locus to ascertain things for himself.<o:p></o:p>Section
19 (4) of the Court Act, 1971 (Act 372) provides as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(4) A
person aggrieved by any interlocutory order or decision made or given by a
District Court may appeal against it to the High Court with the leave of the
District Court or of the High Court and the High Court shall have jurisdiction
to hear and determine any such appeal.”<o:p></o:p><o:p>&nbsp;</o:p>The first
question is whether the ruling of the district magistrate is an interlocutory
order or a final order. The test is whether the ruling finally disposes of the
rights of the parties. If it does, then it is a final order and not an
interlocutory order. Returning to the facts of the case it was an order
expressing an intention to visit the locus and ascertain facts for himself. It
does not determine the case finally as a judgment would do, declaring either
the plaintiff or the defendant to be the owner of the land in dispute. It was
an order made within the trial to assist the court in arriving at a final
order. It is therefore not a final order disposing of the rights of the
parties. It is an interlocutory decision or order. The second question is: was
leave to appeal obtained from either the district court or the High Court?
There is no evidence before this court that any application was made to either
the district court or the High Court for the grant of leave to appeal. This
court is of the view that no leave to appeal was obtained.<o:p></o:p><o:p>&nbsp;</o:p>Now by
the mandatory provision of section 19 (4) of Act 372 leave to appeal ought
first to have been obtained before this court can be seised with jurisdiction,
but since that provision was not complied with, this court is unable to
entertain the appeal. It is therefore dismissed with costs assessed at ¢6,000
to the defendant respondent: see Atisu v. The Republic [1974] 1 G.L.R. 53 and
Bosson v. Altrincham Urban District Council [1903] 1 K.B. 547.<o:p></o:p>