Order of Provincial Commissioner under section 71 (1) of Native Administration Ordinance-Must provide fur hearing of case by some tribunal-Otherwise it is of no effect a. stay or otherwise-Order of Review under section 84 (1) of Ordinance remains in force where Commissioner's order void.

The facts are set out in the judgment.

Held: Execution of original judgment stayed pending review.

A ,'Sawyer (with him Ofei Awere) for Appellant.

E. C. Quist for Respondents.

The following judgment was delivered:­ DEANE, C.J., GOLD COAST.

This is an appeal from a decision of the Provincial Commis­sioner of the Eastern Province, dated 23rd December, 1933, in which he refused to stay the issue of execution under a judgment of a Tribunal.

The facts so far as they are relevant may be shortly stated. In April, 1928, the plaintiffs brought an action against defendant in the Tribunal of the Ga Manche in which they alleged that as children of Abraham Augustus Lutterodt deceased they had an interest in his estate, and claimed (1) a declaration that they were members of the family of the said Abraham Augustus Lutterodt and as such entitled in distribution of his estate (2) to have the estate wound up and the portion due to them severally paid to them. On 30th December, 1930, the Tribunal delivered judgment declaring that as lawful issue of a lawful marriage according to native customary law plaintiffs were members of the family of deceased and were entitled to one-third in the distribution of the estate of deceased. They also granted plaintiffs costs.

Defendant did not appeal from this judgment but applied to the Tribunal and obtained from it an order of review under section 84 (1) of the Native Administration Ordinance, and from a letter written by plaintiffs and exhibited on page 10 of the record it seems that a hearing notice was actually served on plaintiffs to appear before the Tribunal on 18th February, 1931, in order that the  Tribunal  might review its judgment of 30th December, 1930. But on 17th February, 1931, the defendant, without waiting for the review to be heard, applied to the Provincial Commissioner's Court and obtained an order stopping the further hearing of the case before the Tribunal.

This seems to have acted as a stay for all further proceedings until on 13th November, 1933, when the Tribunal served on defendant a formal decree for costs- under their judgment of· 30th December, 1930, whereupon the defendant applied to the Provincial Commissioner to stay execution, and was refused as I have alleged.

The defendant now contends that the order of the Provincial Commissioner stopping the further hearing of the case before the Tribunal operates as a general stay, and that execution cannot be issued under the judgment, which is in a state of suspended anima­tion, as it were, owing to the order for review made by the Tribunal-while plaintiffs contend that defendant having by his own action prevented the Tribunal from reviewing their judgment, the judgment is in full force and effect and they are entitled to have execution.

Now the order of the Provincial Commissioner stopping the hearing of the case before the Ga Manche's Court, even supposing that it was in his power to order a transfer after judgment had been given, was, in my opinion, an incomplete order and one which, as it stands, is contrary to law and therefore void. Section 71 (1) of Cap. HI under which the power is given to the Provincial Commissioner's Court to stop the hearing of a case reads:-

"The Provincial Commissioner's Court may, either of " its own motion or on the application of a defendant, by order " stop the hearing of any civil or criminal cause matter of " question commenced or brought before any Tribunal whether "as of first instance or by way of appeal, or referred, " transmitted, or remitted thereto under section 59 or under " section 69 or otherwise, on such terms as it may consider " just: and thereupon the following provisions shall apply-

" (a) If such cause matter or question shall appear to the " Provincial Commissioner's Court to be one within " the jurisdiction of some other Tribunal, it may by "the same or another order direct that such cause " matter or question shall be enquired of, tried and " determined by such Tribunal as shall appear to it "to have jurisdiction over such cause matter or " question; or

" (b) Except in the case of any cause matter or question " which relates to. the ownership possession or occupation of any land, or which is otherwise one "properly within the exclusive jurisdiction of a "Divisional Court, the Provincial Commissioner's n.

" Court may in like manner direct that such matter " or question, shall be enquired of, and determined " by the District Commissioner's Court, or the Court " of the Police Magistrate.

" (c) In the case of any cause matter or question. which "cannot under the provisions hereinabove in this " section contained properly be enquired of, tried and " determined by the District Commissioner's Court or "by the Court of the Police Magistrate, the "Provincial Commissioner's Court may in like " manner direct that such cause matter or question " shall be enquire  of, trial and determined in the " Divisional Court."

The section, in fad, has to be read as a whole and then it will be apparent that the power to stop the hearing of a case before a Native Tribunal is but one step in the process of transfer of a case, and as soon as that step is taken " the following provisions shall apply". Then follow directions that by the same order or by another the Provincial Commissioner may decide as to what Court he shall transfer the case to according as it falls under sub­sections (a), (b) and (c).

The Commissioner is in fact given power to decide as to which course he shall follow,- but he must follow one, and he has no power to order that the hearing of the case shall stop without at the same time making an order for transfer. To hold that he could would amount to giving' him the power to deny justice contrary to Magna Charta, as in fact has happened in this case where it has not been possible for anything to be done since the order stopping the hearing was made owing to the fact that the Commissioner has not appreciated the phrase and  thereupon the following " provisions shall apply".

In my opinion the order of the Provincial Commissioner being void the order for review by the Tribunal is in force for what it is worth, and the parties must go hack to the Tribunal and have the review heard and determined.

We agree that until the review is heard and determined execu­tion should not issue.

We express no opinion as to whether the review order is good or bad.

The appeal is upheld and execution will he stayed pending ­the final determination of the matter by the Tribunal.

As the defendant is responsible for obtaining the incomplete order of the Provincial Commissioner whereby he has succeeded in holding up the matter for over three years we think there should be no order as to costs.