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JELR 84057 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]




This is an appeal from a decision of the Chief Justice discharging a rule nisi obtained on behalf of one Kpakpa Dogah for the issue of a writ of Habeas Corpus directed to the Awoame Fia Togbi Sri II, President of the Highest Native Tribunal of Awuna and to the keeper of the Prison of the said Tribunal.

It appears that the applicant had in 1921 successfully sued one Fiagbenu Kwasinye before the Native Tribunal of Fia Asren II of Mafi to recover possession of a piece of land. Kwasinye appealed to the Highest Native Tribunal of Awuna which reversed the judgment of the first Tribunal. The Provincial Commissioner dismissed an appeal from this latter decision, but the Full Court set aside his judgment on the ground that the Native Tribunal of Awuna had not at all time during the hearing been properly constituted. Kwasinye then applied to the Awuna Tribunal to rehear his appeal from the Mafi Tribunal, and eventually that Tribunal gave judgment in his favour with costs taxed at £79 1&. 6d. Kpakpa Dogah appealed to the Provincial Commissioner, but failed to comply with the conditions imposed and his appeal was struck out.

On the 1lth of February, 1930, the Awuna Tribunal issued a writ of ca. sa. To enforce payment of the costs, and this writ was executed on the 21st of November, 1930, when Kpakpa Dogah was arrested and imprisoned for three months.

The question which the learned Chief Justice had to decide when cause was shown by the President of the Awuna Tribunal and the Keeper of the Prison was whether the Tribunal had jurisdiction to issue the ca. sa. He decided that they had jurisidction.

When the appeal from this decision came before this Court Counsel for the respondent, who is the execution creditor, raised two preliminary objections. First he argued that the appeal was not properly before the Court.

The appellant had obtained conditional leave to appeal from this Court (being out of time for obtaining leave from the Court below) on condition (inter alia) that he should give notice to all parties directly affected by the appeal. He subsequently came before a single Judge of this Court and was granted an extension of time for fulfilling the conditions. The present respondent (Charles M. Fiagbenu) had previously been substituted for Fiagbenu Kwasinye in circumstances which are not apparent from the record.

The appellant gave notice to Charles Fiagbenu and obtained final leave to appeal from the same Judge.

It is clear that the appellant did not in fact comply with the conditions imposed by this Court in that he neglected to give notice to the only two persons who were directly affected by the appeal, namely, the President of the Tribunal and the Keeper of the Prison. It does not follow that his appeal must fail on that ground. To adopt the language of the Privy Council in Kojo Pan v. Atta Fua (P.C. 1874-1928) at page 98, to refuse to hear this appeal on the ground of a mere technicality would be to fail to do justice as between the parties The failure would be even more serious in a case of this kind where in ordinary circumstances the liberty of the Appellant would be at stake. But for second and more vital objection to which I am about to refer, the proper course for this Court to adopt would be to give the appellant time to give notice to the proper parties and to adjourn the hearing of the appeal for that purpose.

The second point taken by the respondent was that the appellant being now at liberty, there is, so to speak, no virtue in this appeal. It is admitted that the appellant is no longer detained and it appears from an affidavit on the record that he was released after a month, presumably because he paid the amount of the costs. In these circumstances what effective order could this Court make, assuming that it considered that the learned Chief Justice was wrong in refusing to issue the writ? The sole object of a writ of Habeas Corpus is to secure the release of a person who is unlawfully detained. Where an applicant is not detained, it obviously cannot issue, and it would be an absurdity to listen to arguments of a purely academic nature based on a state of things which does not in fact exist.

That an appeal of this kind could not lie where the appellant those release ostensibly is sought is at liberty seems to me a self evident proposition which needs no authority to support it, and one would hardly except to find any. There is, however, a Canadian case Fraser v. Tupper, cited in the English and Empire Digest,Vol. 16, page 271, rote f., which is exactly in point and decides, to quote the language of the note, that “an appeal will not lie in any case of proceedings for or upon a writ of Habeas Corpus when at the time of bringing the appeal appellant is at large.”

It is abundantly clear that in the present case these proceedings were brought not with the genuine object of testing the validity of the commitment of the appellant, but as an indirect method of appealing against the decision of the Awuna Tribunal. From that decision an appeal Jay to the Provincial Commissioner, and it was only through his own failure to fulfil1 the conditions imposed that the appellant was unable to prosecute the appeal. If this had been a genuine application intended only to secure the release of the applicant from an up lawful detention, he could at once when the application was refused by the learned Chief Justice, have renewed it before every Judge of the Supreme Court in turn:

See Eshugbayi Eleko v. Officer Administering the Government of Nigeria and another, (1928) A.C. 459.

It cannot be too clearly emphasised that procedure by way of Habeas Corpus was never intended to be, and should not be used for any such indirect purpose.

This appeal is dismissed with costs assessed at £19 15s. The Court below to carry out.

MICHELIN, J. I concur. SAWREY-COOKSON, J. I concur.

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