JUDGMENT OF ADUMUA-BOSSMAN J.
(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 o
