Appeal from judgment of
Paramount Chief's Tribunal to
Court of
Appeal from
Provincial Commissioner without
prior application to the
Paramount Chief's Tribunal for
leave to appeal-Interpretation
of
proviso added to subsection
(2)
of section
77
of the Native Administration
Ordinance (Cap.
111)
by Ordinance No.
18
of
1935.
Held: The proceedings before the
Court of the Provincial
Commissioner amount. to a
nullity; and judgment of
Paramount Chief's Tribunal
restored.
Held further (Petrides, C.}.,
dissenting) : the
above-mentioned proviso
qualifies
sub-section (2) only.
There is no necessity to set out
the facts of this case.
E.
C.
Quist
for Appellants.
Ofei Awere
for Respondent.
The following judgments were
delivered :WEBBER, C.J., SIERRA
LEONE.
The High Native Tribunal of Ada
gave judgment non-suiting the
plaintiff and ordering each
party to pay his own costs.
The plaintiff appealed from the
judgment straight to the Supreme
Court, Eastern Province. He
should have applied to the same
Tribunal for leave to appeal. No
record can be traced in Ada
Manche's Tribunal of any
proceedings by way of
application for leave to appeal.
The proceedings before the
Appeal Court below therefore
amount to a nullity.
Counsel for plaintiff-respondent
has referred us to the proviso
to sub-section (2) of section 77
of Cap. 111 and has submitted to
us that, inasmuch as the words "
this section" and not " this
subsection" are used in the
proviso, this proviso refers to
both subsections of the section
and asks that our discretion be
exercised in his client's
favour.
The section referred to without
the proviso reads as follows :-
•. 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 a
Magistrate's Court constituted
by the District Commissioner 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 proviso was added to
subsection (2) by Ordinance No ..
18 of 1935, section 13 of which
reads as follows :-
.. 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 its 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 proviso qualifies sub-section
(2) only. If it were intended to
belong or refer to or affect the
interpretation of both
sub-sections the legislator would
have said" section 77, etc., shall
be amended ... etc., and not
sub-section (2) of section 77." I
am clearly of opinion that the
proviso refers to sub-section (2)
only.
But even if the amendment could be
construed to apply to sub-section
(1) I do not think this is a case
for exercising our discretion in
favour of the respondents, for it
is to be noted that the granting
of leave to appeal by the Tribunal
is discretionary and might or
might not be granted. In my view
an appeal should not be
entertained when this essential
step has been omitted. The result
is that the decision in the Court
below amounts to a nullity, as
also all the proceedings
subsequent to the decision of the
native Tribunal.
In my opinion therefore the appeal
should be allowed and the judgment
of the High Native Tribunal of Ada
restored.
KINGDON, C.]., NIGERIA.
I
concur.
PETRIDES, C.]., GOLD COAST.
I
concur with the last two
paragraphs of the judgment which
has just been read, but regret I
find myself unable to agree with
the paragraph which precedes it.
As Maxwell on the
Interpretation of Statutes
states at pages 2 and 3 of the
seventh edition :-
.. The great fundamental principle
is :
., , In construing wills and,
indeed. statutes and all written
instruments,
~"the grammatical and ordinary
sense of the words is to be
adhered to, unless that would lead
to some absurdity, or some
repugnancy or inconsistency with
the rest of the instrument, in
which case the grammatical and
ordinary sense of the words may be
modified so as to avoid that
absurdity and inconsistency, but
not farther' (f)."
I see no reason why the ordinary
sense of the word" section" should
not be adhered to. In my opinion
to so hold would not lead to any
absurdity, repugnancy or
incoI1sistency with the rest of
the section such as to justify the
ordinary sense of the word "
section" being changed to "
sub-section |
