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December 9, 1986
HIGH COURT
GHANA
CORAM
JUDGMENT OF AMUAH J.
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.
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 [p.65] 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.
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.
Section 19 (4) of the Court Act, 1971 (Act 372) provides as follows:
"(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."
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 expre
AI Generated Summary
The High Court, per Amuah J., dismissed the plaintiff-appellant’s appeal from a District Court order authorizing a visit to the locus in quo in a land dispute. After both sides had closed their cases, the district magistrate granted the defendant-respondent’s application to inspect the site. Mr A.B. Sam, for the plaintiff, argued the land’s identity and physical features were undisputed and that the pleadings admitted the boundaries, citing Asare v. Donkor and Serwah II [1962] 2 G.L.R. 176 (S.C.). Mr Donkor, for the defendant, countered that the order was interlocutory and that leave to appeal under section 19(4) of the Courts Act, 1971 (Act 372) was mandatory; without it, the High Court lacked jurisdiction, referencing Yevu v. The Republic [1972] 2 G.L.R. 148 and Karletse-Panin v. Nuro [1979] G.L.R. 194 (C.A.). Applying the finality test, the court held the order interlocutory, found no evidence of leave obtained, and dismissed the appeal with costs, citing Atisu v. The Republic [1974] 1 G.L.R. 53 and Bosson v. Altrincham Urban District Council [1903] 1 K.B. 547.