This appeal is brought from a
judgment of the West African
Court of Appeal (Gold Coast
Session) allowing the appeal of
the respondents from a judgment
of the Provincial Commissioner's
Court (Eastern Province) of the
Gold Coast in favour of the
plaintiff in the proceedings.
That judgment had reversed a
judgment of the High Native
Tribunal of Ada given in favour
of the respondents. The
appellant has been substituted
in the course of the proceedings
for the original plaintiff who
had died.
The litigation is between
representatives of two tribes,
viz. the Anyigbe tribe and the
Fieve tribe, and relates to the
ownership of land. The
representatives of the Anyigbe
tribe are the appellants before
the Board; but their Lordships
are not, on this appeal, in any
way concerned with the merits of
the dispute between the
litigants.
The appeal relates to the
questions whether in the
circumstances of the case the
judgment of the Provincial
Commissioner's Court was
pronounced without jurisdiction,
and if so whether the Court of
Appeal (in its discretion) could
and should have heard and
determined the appeal therefrom.
Reported at 3
W.A.C.A. p. 125.
The answer to these questions
depends primarily upon the true
construction and effect of the
Native Administration Ordinance
(No. 18 of 1927) and the Native
Administration Amendment
Ordinance, 1935 (No. 18 of
1935).
The relevant sections of the
first-named Ordinance are
sections 75, 76 and 77, which
provide :--
75. In any suit or matter
relating to the ownership,
possession, or occupation of any
land an appeal shall lie from
the decision of the Paramount
Chief's Tribunal to the
Provincial Commissioner's Court.
76. No Appeal shall lie under
section 73, section 74, or
section 75 unless the party
appealing shall give notice of
appeal within the proper periods
hereinafter in this section
prescribed, reckoning from the
date of the decision appealed
against, namely :-
(1) From a Divisional Chief's
Tribunal to Ii Paramount Chief's
Tribunal, within two months;
(2) From a Paramount Chief's
Tribunal to the District
Commissioner's Court, within
four month!! ;
(3) From a Paramount Chief's
Tribunal to the Provincial
Commissioner's Court, within six
months.
77. (1) A party desiring to
appeal from a Paramount Chief's
Tribunal shall first obtain the
leave of such Tribunal so to do
: provided that, if the said
Tribunal shall have refused such
leave, the Provincial
Commissioner's Court or the
District Commissioner's Court
may nevertheless grant leave to
appeal.
(2) Leave to appeal from a
Paramount Chief's Tribunal shall
not be granted unless and until
the appellant shall either have
paid the costs in such Tribunal
or shall have deposited therein
or in the Court to which the
appeal is being taken a sum of
money sufficient to satisfy such
costs; and such Court shall not
grant a stay of execution with
respect to the said costs.
The Amendment Ordinance contains
a section No. 13
which runs thus :-
'
13. Sub, section (2) of section
77 of the Native Administration
Ordinance shall be amended by
adding at the end thereof the
following proviso :-
" Provided that notwithstanding
anything in this section
contained the West African Court
of Appeal may in it!!
discretion, for the purpose of
doing substantial justice
between the parties, hear and
determine any appeal brought
before. it on such terms and
conditions as it may deem just."
The facts relevant to the
present appeal may now be
shortly stated.
After the judgment of the High
Native Tribunal (which is a
Paramount Chief's Tribunal) and
within the six months required
by section 76 (3) an order was
made (dated the 16th April,
1929) by the Provincial
Commissioner's Court granting to
the plaintiff leave to appeal
from the decision of the
Paramount Chief's Tribunal on
certain conditions. The
conditions were duly complied
with, and on the 15th May,1929,
the conditional leave was made
final. There is at present no
material available to show that
any application for leave
to appeal had been made to the
Paramount Chief's Tribunal, or
that if made it had been
refused. On the one hand their
Lordships were told by Counsel'
for the appellant that the
affidavit which was filed in
support of the application
leading up to the order of the
16th April, 1929, and which was
not printed in the record before
the Board, had been read by him,
and that it contained no
reference to any application to
the Paramount Chief's Tribunal
for leave to appeal. On the
other hand their Lordships find
it difficult to believe that the
Commissioner would act under
section
77 (1) without being satisfied
that the conditions precedent to
his being competent to make any
order thereunder which are
therein specified had been
complied with.
However that may be, the
plaintiff's appeal was
subsequently heard and
adjudicated upon in the
Provincial Commissioner's Court,
with results favourable to the
plaintiff. The defendants
thereupon appealed to the West
African Court of Appeal. The
appeal came on for hearing
before Sir Donald Kingdon, C,J.
(Nigeria), Sir Philip Bertie
Petrides, C.J. (Gold Coast) and
Arthur Webber, c.J. (Sierra
Leone), on the 28th April, 1936.
Counsel for the defendants
contended (amongst other grounds
of appeal) that the Provincial
Commissioner had no jurisdiction
to grant leave to appeal and
that consequently his judgment
on the hearing of the appeal was
without jurisdiction. Counsel
for the plaintiffs asked that
enquiry be made. The case was
accordingly adjourned for a
report from the Prov,incial
Commissioner upon two points,
viz., (1) whether there were any
proceedings in the Native
Tribunal by way of application
filed for appeal between the
date of the 'original judgment
and the date of the order of the
Provincial Commissioner's Court
giving conditional leave to
appeal; and (2) the delay which
had apparently occurred in the
case. The report of the
Commissioner gave an explanation
of the delay, but gave no
information on the first point.
The adjourned hearing of the
defendants' appeal took place
on, the 16th November, 1936,
when the matter was again
adjourned in order to get a
reply on the first point from.
the Commissioner. At the further
hearing on the 3rd December,
1936, a telegram from the
Commissioner was read which
stated-It No record can be
traced in Ada Manche's Tribunal
(i.e., the Native Tribunal in
question) of any proceedings by
way of application for leave to
appeal between 18th
January,1929, and 16th April,
1929," Counsel for the plaintiff
desired 1939_. _ to read a
letter written by direction of
the Paramount Chief Adabla, (who
he said was illiterate)
indicating that leave must have
etc. been granted: but the Court
refused to look at it.
Judgment was reserved and was
delivered on the 9th
December,
1936. --
The Chief Justice of the Supreme
Court of Sierra Leone was of
opinion that the proviso
introduced by the Ordinance No.
18 of 1935 qualified only the
second subsection of section 77
of the Ordinance No. 18 of 1927,
and that since no record could
be traced in the Paramount
Chief's Tribunal of any
application for leave to appeal,
the proceedings before the
Provincial Commissioner's Court
amounted to a nullity. But he
was also of opinion that,
assuming that the proviso
applied also to the first
subsection of section 77, the
case was not one for exercising
the discretion conferred by the
proviso, because the granting of
leave by the Paramount Chief's
Tribunal was discretionary and
might or might not be granted,
and in his (the Chief Justice's)
view, "an appeal should not be
entertained when this essential
step has been omitted." The
Chief Justice of the Supreme
Court of Nigeria concurred in
that judgment. The Chief Justice
of the Gold Coast concurred with
that part of the judgment which
dealt with the exercise of
discretion under the proviso,
but dissented from the
construction of section 13 of
the Ordinance No. 1~ of 1935. He
was of opinion that the proviso
qualified both subsections of
section 77, feeling unable to
depart from he ordinary meaning
of the word" section" in the
proviso.
In the result an order was
made allowing the defendants'
appeal, setting aside the
judgment of the Provincial
Commissioner's Court and
restoring the judgment of the
High Native Tribunal.
The appellant now asks His
Majesty in Council to discharge
that order and to remit the
matter for reconsideration by
the West African Court of Appeal
on the grounds (1) that the
majority misconstrued the
proviso in question, (2) that
the Court had jurisdiction in
the proper exercise of its
discretion to hear and determine
the defendants' appeal
notwithstanding that the
provisions of section 77 (1) had
not been complied with, (3) that
in their hypothetical use of
their discretion as stated in
the judgments the Judges had
proceeded on wrong grounds, and
(4) that in any event the Court
should have presumed that
everything had been duly
performed and that the
Provincial Commissioner's Order
of the 16th April, 1929, had
been lawfully made unless and
until it had been affirmatively
proved that the conditions
precedent to the existence of
his jurisdiction had not been
fulfilled.
The defendants did not appear
before their Lordships Lord
Russell Board, so their
Lordships did not have the
advantage of hearing the
questions argue adversely to t e appellant;
nevertheless they feel no doubt
that the matter should not rest
where it is ..
In their opinion the
construction of section 13 of
the Ordinance No. 18 of 1935 is
from its language reasonably
plain. The word" section" admits
of no doubt, it does not in its
natural signification mean
"sub-section," and it certainly
cannot mean it in a section
which itself uses both words in
its opening line. The only
possible ground for suggesting
the contrary (for the marginal
note must be disregarded) is
that section 13 enacts that
"subsection (2) .... shall be
amended"; but the word" amended"
in that context need mean no
more than" altered," and is not
inconsistent with the alteration
introduced into that subsection
operating as a qualification of
the whole section. Their
Lordships agree with the opinion
of the Chief Justice of the Gold
Coast ..
The Court of Appeal had
accordingly jurisdiction to hear
and determine the appeal on its
merits if in its discretion it
thought proper to do so. The
Judges have intimated that, upon
the hypothesis of jurisdiction,
they would not exercise their
discretion in favour of hearing
the appeal. To that extent they
have hypothetically used their
discretion; but they have also
stated the grounds upon which
they would in this case exercise
their discretion in the
particular way indicated. They
say that since the granting of
leave under section 77 (1) is
discretionary in the Paramount
Chief's Tribunal and might be
refused there, an appeal should
not be entertained (i.e., the
discretion given by the proviso
should never be exercised) in
cases where the essential step
of applying to that Tribunal has
been omitted. This view,
however, would reduce the
operation of the proviso on
section
77 (1), to which ex hypothesi
it applies, to a nullity.
Their Lordships are accordingly
of opinion that the Court of
Appeal has, in the present case,
exercised the discretion
conferred upon it on wrong
grounds.
Their Lordships do not feel able
in the present case to act
upon the presumption that leave
to appeal was asked for and was
refused by the Paramount Chief's
Tribunal; the fact that the
affidavit above mentioned is
silent upon the point is an
important fact in this
connection. On the other hand,
it may be doubtful whether the
absence of a record on the
files of the Tribunal is
necessarily conclusive. That is
a question which can best
be answered by those who are familiar with the
degree of care and accuracy with
which of such records
and files are kept. It is,
however, a matter into
which further enquiry might well
be made, and upon which
any communication authorised by
the Paramount Chief would
be of value.
In the result their Lordships
are of opinion that the order
appealed from should be
discharged and the appeal
remitted for rehearing to the
West African Court of Appeal.
Their Lordships will humbly
advise His Majesty accordingly.
On such rehearing, if and when
satisfied that the provisions of
section
77 (1) have not been observed,
the discretion conferred by the
proviso in question should be
exercised after a consideration
of the relevant facts subsequent
to the original judgment
including, their Lordships would
suggest, the question whether
the omission to apply to the
Paramount Chief's Tribunal for
leave to appeal, was deliberate
or accidental or the result of a
bona fide mistake. If the
Court decides to exercise the
discretion in favour of hearing
the appeal, it will do so on
such terms and conditions as it
may deem just.
The respondents must pay the
costs of this appeal.
