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Native Courts (Colony) Ordinance, 1944, section 52 (1) proviso-Native Courts (Colony) Procedure Regulations, 1945, Reg. 115 (i)-Time for appeal to Land Court-Appeal out of time.

The Native Court gave judgment against the defendants; they applied to that Court for review of its judgment; it was set aside, but later it was restored; and within one month of its being restored the defendants filed notice of appeal to the Land Court.

In the Land Court the plaintiffs objected on the ground that the above-cited Regulation allowed one month from judgment for filing notice of appeal whilst the notice in this case was filed much later. The Land Court gave the defendants conditional leave to appeal on the view that the proviso to section 52 (1) of the above Ordinance gave the Court a discretion to hear and determine an appeal though not filed within that time limit. The plaintiffs appealed from the Land Court. For the defendants it was argued that they could not appeal from the Native Court until the judgment was restored.

Held: The said proviso only confers a discretion to hear and determine" any appeal brought before the Court ", but unless notice of appeal is filed within the time allowed by the regulation there is no appeal in existence in which discretion can be exercised; nor can the respondents now complain because the procedure they adopted by way of review in the Native Court turned out to be the wrong one.

(Editor's Note: The said section and regulation are given infra in the W.A.C.A. judgment. In the judgment, infra, below the text of the regulation, the defendants are referred to as " the appellants ", viz. in the proceedings in the Land Court; towards the end of the judgment they are referred to as "the respondent ", viz. in the proceedings in the \Vest African Court of Appeal.)

Appeal from Land Court by the side who were plaintiffs in the Native Court:

W.A.C.A. No. 118/49.

C. C. LaMa for the Appellants.

K. A. Bossman for the Respondents.

The following judgment was delivered:

Foster-Sutton, P. The facts of this case are fully set out in the learned Chief Justice's Order, the subject of this appeal, and no good purpose would, therefore, be served by a recapitulation of them here.

The question we are asked to determine is whether the Land Court, in its appellate jurisdiction, has power to grant an application for conditional leave to appeal by virtue of the discretion vested in it by the proviso to section 52 (1) of the Native Courts (Colony) Ordinance, 19'~4, when notice of appeal has not been filed within' one month of the date of the decision appealed against as required by Regulation 115 (1) of the Native Courts (Colony) Procedure Regulations, 1945. [pg 44]

"Provided that notwithstanding anything in this Ordinance or in Regulations made hereunder a Native Appeal Court, or a Magistrate's Court or a Land Court sitting in its appellate capacity, may in its discretion, for the purpose of doing substantial justice between the parties, he1.r and determine any appeal brought before it on any terms which it thinks just."

"115 (1) Any person wishing to appeal from an order or decision of a Native Court shall file in the Native Court and lodge in the Appeal Court a Notice of Intention to Appeal and such Notices shall be filed and lodged within one month of the date of the order or decision appealed against."

The judgment which the appellants sought to appeal against was delivered on the 11th September, 1948, and the Notice of Appeal was filed on the 14th June, 1949.

The learned Chief Justice held that the proviso referred to confers a discretion upon the Land Court to hear and determine an appeal and for that purpose to grant conditional leave to appeal notwithstanding that Notice of Appeal has not been filed within the time limit provided by the above-mentioned regulation, and that justice in this case required the discretion to be exercised in favour of the appellant.

With respect to the learned Chief Justice I disagree with that ruling. The proviso in question only confers a discretion to hear and determine" any appeal brought before the Court ", and, in my view, Regulation115 (1) of the regulations referred to makes the filing of a Notice of Appeal within the period stipulated therein an indispensable condition to the existence of an appeal. If that condition has not been complied with, as was the case here, I am of the opinion that the Court's jurisdiction to exercise its discretion under the proviso to section 52 (1), does not arise.

On behalf of the respondent it was also argued that the judgment of the Native Court having been set aside within one month of its delivery, the respondent could not appeal until that judgment was restored and that he had filed his appeal within one month of its restoration. I am unable to agree with this contention: the respondent chose to apply to the Native Court to review its judgment, under the provisions of section 51 of the Native Courts (Colony) Ordinance, 1944, and he cannot now complain because the procedure he adopted turned out to be the wrong one.