Appeal Court
14th Nov., 1932. Appeal
from decision of the Provincial
Commissioner's Court.
Defendant-
Respondent. Construction of
section 8 of the West
African Court of Appeal
Ordinance considered and its
limitations explained-appeal
dismissed.
Held: No
jurisdiction to hear the appeal.
Section 8 of the West African
Court of Appeal Ordinance
limited to appeals which lie by
virtue of statutory provisions.
There is no
need to set out the facts.
Silas Dove
for Appellant.
Asafu-Adjaye for Respondent.
The following
judgments were delivered
:DEANE, C. J., GOLD COAST AND
WEBBER, J.
The
preliminary point taken in this
appeal is a short one. It
appears that the judgment
against which the appeal is
taken was delivered by the
Provincial Commissioner on 16th
October, 1931. By rule 10 of the
West African Court of Appeal
Rules it is provided that after
three months from the date of a
final judgment or decision
application for leave to appeal
shall not be entertained by the
Court below. The judgment of the
Provincial Commissioner who was
sitting on appeal from a
Tribunal was a final judgment
and according to the rule he
could not therefore entertain
any application for leave to
appeal after three months from
the date of the judgment and the
application in this case was in
fact not made to him until the
11th April or nearly six months
after when he gave conditional
leave to appeal.
Inasmuch as
the rule specially provides that
after three months he should not
entertain an application for
leave to appeal it is clear that
in granting leave the Provincial
Commissioner was doing something
which the rule specially
prohibited him from doing, and
it follows that his order must
be regarded as a nullity and
that this appeal is not properly
before the Court.
Then the
further question arises can this
Court entertain the appeal under
the circumstances? On behalf of
the appellant it is argued that
leave to appeal was obtained
from the Provincial Commissioner
within six months within which
time the appellant might have
obtained leave from the West
African Court of Appeal under
rule 11 and that it is a hard
case that he should be deprived
of his rights to appeal because
the Provincial Commissioner
misapprehended his powers. Since
if the application had been
refused the appellant might
still have had time to make an
application to the Court. I
sympathise to some extent with
the appellant although I need
hardly point out that he is
responsible for any step he
takes; but I am afraid this
Court has no power under the
rules to extend the time within
which an application for leave
to appeal can be made. It is
bound by its own rules and were
it to give leave itself now to
the appellant to prosecute his
appeal it would in effect be
doing the very thing which the
Provincial Commissioner did.
This is not a case falling
within Order 4 Rule 2 of the
Rules of the Supreme Court,
where parties may by consent
enlarge or abridge the time and
in case of their failure to
agree the Court may order that
the time for doing the acts
provided for in the rules be
enlarged or abridged. The
limitation of the time within
which appeals may be brought
stands on a different footing
and I know of nothing in the
rules of the Supreme Court under
which this Court may enlarge the
time.
Then the
effect of section 8 of the West
African Court of Appeal
Ordinance (No. 28 of 1929)
remains to be considered. That
section reads: "notwithstanding
anything hereinbefore contained
the Court of Appeal may
entertain any appeal from a
Court below on any terms which
it thinks just."
At the first
blush this section would seem to
give unlimited discretion to
this Court to entertain appeals
in disregard of any provisions
of the law whenever it seems to
it to be just to do so. To put
such an interpretation upon it
however would to my mind be
contrary not only to all
general' canons of
interpretation but would
certainly introduce such an
element of uncertainty into the
Administration of the law as
would not be conducive to
justice.
One
instinctively turns therefore to
the context in which this
section occurs to see what the
real meaning is and there one
finds that it follows closely
upon and is intimately connected
with the preceding section 7
which deals with conditions of
appeal. Whether it also depends
upon the preceding six sections
I do not decide as they are not
relevant to this case and it is
therefore unnecessary to do so.
Section 7 provides: " Subject to
the provisions of the next
section the Court of Appeal
shall not entertain any appeal
unless the appellant has
fulfilled all the conditions of
appeal imposed by the Court
below as prescribed by rules of
Court." Then follows section 8.
The two sections must it seems
to me be read closely together
and then section 8 may be read
as giving the Court power
notwithstanding section 7 to
dispense with the strict
requirements of the law as laid
down in section 7 in any case in
which it seems to it just to do
so. If therefore this
preliminary objection were that
one of the conditions of appeal
laid down by the Provincial
Commissioner had not been
complied with this Court would
have under section 8 the right
to entertain the appeal if it
thought it just to do so
notwithstanding section 7. But
this objection goes far beyond
that. It is concerned not with
the conditions of appeal as
fixed by the lower Court. but
with the very existence of the
appeal.
When a lower
Court by a valid order in fact
made within the rules creates an
imperfect thing this Court may
disregard the imperfection and
entertain the appeal which is
properly before It
notwithstanding that
imperfection, but when as in
this case the lower Court has
done something directly contrary
to the rules and has assumed to
itself a power which is
expressly taken away from it,
there is no question of its
creating an imperfect thing
which the Appeal Court may
consider and put right. It has
created nothing and ex nihilo
nihil fit.
The appeal
therefore' in my opinion must be
dismissed with costs.
HOWES, J.
I have had
the advantage of reading the
judgment of the learned
President and I concur as to the
main issue, that the appeal must
be dismissed on the ground that
leave to appeal was granted out
of time.
I am however
reluctantly obliged to differ
from the views expressed by the
learned President as to the
interpretation to be put on
section 8 of the West African
Court of Appeal Ordinance, 1929.
It is
certainly obvious that section 7
of this Ordinance is to be read
subject to section 8; and that
the words •• subject to the
provisions of the next section "
in section 7, diminishes the
force of the absolute
prohibition which it would
otherwise impose. Nevertheless
even if these words were absent,
the terms of section 8 would
operate to qualify section 7.
What then do
these words in section 7 add to
the qualifying terms of section
8? Why should it be assumed that
because section 8 modifies
section 7 section 7 modifies
section 8 ?
The words in
section 8" notwithstanding
anything hereinbefore contained"
must refer to each and all of
the preceding sections under the
heading" Appeals in civil cases"
unless there is anything in any
of them which logically must be
excluded from the operation of
section 8.
On a careful
examination of each of the
preceding sections I can find
nothing: and in my view section
8 was intended to give to the
Court of Appeal the widest
discretion in all cases in which
an appeal lies. In effect this
section provides a means of
appeal in special cases in which
it would be unjust to refuse to
entertain an appeal, as for
instance where the pecuniary
amount involved was below the
statutory figure but the
principle involved was of the
highest importance.
