This is an appeal from the
judgment of the West African
Court of Appeal, Gold Coast
Session, (1) reversing a
judgment of the Provincial
Commissioner of the Western
Province who had reversed a
judgment of the Native Tribunal
of the Omanhene of Beyin, and
the question in the case is
whether or not the Provincial
Commissioner had jurisdiction to
entertain at all the appeal from
the Native Tribunal. The action
was brought by the plaintiff for
damages for trespass on his land
and for unlawfully arresting the
plaintiff's men. The Native
Tribunal had given judgment for
the defendant.
Now the rules regulating appeals
from the Paramount Chief's
Tribunal (which this was) are
laid down by the Native
Administration Ordinance, which
is now Chapter 111 of the Laws
of the Gold Coast Colony, 1928.
By section 77, sub-section (1);-
"A party desiring to appeal from
It 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."
Then by sub-section (2) it is
proyided;-
"Leave to appeal from the
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."
(1) Reported in I W.A.C.A., p.
242.
An application was made to the
Native 'Tribunal Court for leave
to appeal and the Native
Tribunal granted conditional
leave to appeal on the following
conditions. the respondent was
"to deposit £10 into tribunal
against cost of making up and
transmission of appeal record;
(2) to enter into bond in sum of
£212s. 6d. in two sureties of
£25 each to be justified against
costs in Appeal Court; (3) to
give notice of the appeal to all
parties affected by the appeal;
(4) conditions to be fulfilled
within one month from date." On
an affidavit by the respondent
that those conditions had been
fulfilled final leave to appeal
was eventually given. Two bonds
were entered into. One was a
bond in the sum of £21 28. 6d.
and the other was in the sum of
£50, each given by two sureties
and each was conditional for the
payment of costs in the Appeal
Tribunal. So that in fact no
provision was made for the costs
in the first Court at all.
N ow the unfortunate thing is
that that order so made by the
Court of first instance did not
comply with the provisions of
the, statute which provides that
"Leave to appeal from a
Paramount Chief's 'fribunal
shall not be g-ranted 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." To begin with, a
bond is not payment of money,
and in the second place, if it
had been a payment of money,
these particular bonds are not
conditioned for payment of the
costs in the Native Tribunal but
were conditioned for payment of
costs in the Appellate Court,
though the amount of money, £21
2s. 60.., appears to be the
amount of the taxed costs in the
Native Tribunal Court. It is
sufficient to say that the
statutory condition upon which
alone leave to appeal could be
given was not fulfilled. 'When
the appeal came before the
Provincial Commissioner this
point was taken, and he perhaps
not unnaturally treated it as a
technicality which he could
sweep aside, and ordered that
the costs incurred by the
respondent, £21 2s. 60.., in the
Court of first instance should
be at once paid to his Court,
and that was eventually done. He
then proceeded to allow the
appeal.
Unfortunately, as was found by
the majority of the Court of
Appeal and as their Lordships
think, the Provincial
Commissioner had no jurisdiction
to make any order at all,
because no appeal was properly
before him. After all, it is to
be remembered that all appears
in this country and elsewhere
exist merely by statute and
unless the statutory conditions
are fulfilled no jurisdiction is
given to any Court of Justice to
entertain them.
It is not unnatural that Mr.
Justice Howes, dissenting in the
full Court, did his utmost to
try and uphold this order; but
their Lordships find themselves
unable to accept his reasoning.
In the
first place, he came to the
conclusion that the costs
referred to were only the costs
in the Native Tribunal so far as
they related to preparing and
getting ready the appeal. That,
in their Lordships' view, is
not the meaning of the section
which applies to the
respondent's taxed costs of the
hearing in the original Court.
The other grounds which are
referred to by the learned Judge
relate to powers which are given
to an Appellate Court to adopt
certain procedure, to waive
rules, and to try and do
substantial justice-all very
important powers, but which can
only be brought into play once
the Appellate Court is seised 6f
the appeal and has jurisdiction
to entertain it.
But the objection lies
in limine,
in that the Provincial
Commissioner had no
jurisdiction at all; and
therefore the
reference to these powers
unfortunately is irrelevant to
the question of the Provincial
Commissioner being able to give
relief. It is quite true that
their Lordships, as every other
Court, attempt to do substantial
justice and to avoid
technicalities; but their
Lordships, like any other Court,
are bound by the statute law,
and if the statute law says
there shall be no jurisdiction
in a certain event, and that
event has occurred, then it is
impossible for their Lordships
or for any other Court to have
jurisdiction.
For these reasons their
Lordships 'have come to the
conclusion that the judgment
given by the learned Chief
Justice in the Court of Appeal
is correct and they adopt his
reasoning, and will therefore
humbly advise His Majesty that
this appeal should be dismissed:
