2

Judgment of Native Tribunal-Leave to appeal granted though no payment or deposit of costs under section 77 (2) of the Native Administration Ordinance-Court without jurisdiction to hear appeal.

On the 28th of August, 1931, the Native Tribunal of the Paramount Chief of Western Nzima in the Western Province gave judgment in favour of the defendant and ordered the plaintiff to pay the costs of the defendant. On the 9th of September, 1931, the plaintiff obtained conditional leave to appeal to the Provincial Commissioner from this judgment and on the 14th of September, 1931, final leave was granted. Up to that date the defendant's costs had not been paid in compliance with the judgment.

On the appeal coming on for hearing before the Provincial Commissioner on the l0th of December, 1931, objection was taken by Counsel for the defendant that the Court had no jurisdiction to entertain the appeal on the ground that the order granting leave to appeal was irregular, the costs of the defendant in the Court below not having been paid into the Tribunal, nor had any sum of money sufficient to cover such costs been deposited as required by section 77 (2) of the Native Administration Ordinance.

The Provincial Commissioner, however, overruled the objection, and ordered that the plaintiff should at once pay the amount of the costs into his Court, and upon such costs having been paid proceeded to hear the appeal and set aside the judgment of the Native Tribunal, and entered judgment for the plaintiff with costs.

On appeal to the West African Court of Appeal, held, (Howes J. dissenting) that the provisions of section 77 (2) of the Native Administration Ordinance not having been complied with by the plaintiff at the time when leave to appeal was granted by the Native Tribunal, the appeal was not properly before the ProvinciAl Commissioner and his order was ultra vires.

The judgment of the Provincial Commissioner was therefore set aside and the judgment of the Native Tribunal restored.

Judgment of Privy Council in Kojo Pan v. Atta Fua (P.C. 1874-1928, page 95),

considered but distinguished.

J. Anthony-M ensah for the Defendant-Appellant.

F. Awoonor Williams for the Plaintiff-Respondent. The following judgments were delivered :-

DEANE, C.J. THE GOLD COAST COLONY.

This appeal from the Provincial Commissioner of the Western Province came before the Court on 4th November when there was no appearance of respondent or his Counsel and was upheld on a preliminary point taken by Counsel for the appellant. On the 9th November, 1932, the judgment given on 4th November in the absence of the respondent was set aside on terms and on the same day the appeal was reargued by Counsel of both sides.

The point taken before the Court on 4th November and which was again raised on 9th is a short one. By section 77 (2) of the Native Administration Ordinance it is provided as follows :-

"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."

These provisions of the law were not complied with before the Tribunal granted leave to appeal, and such leave therefore being void and of no effect as being contrary to law, the Commissioner had no right to hear and determine the appeal and his judgment is also void.

It appears that on the 28th August, 1931, the Native Tribunal gave judgment for the defendant and ordered plaintiff to pay the costs of the defendant.

The plaintiff on the 9th of September, 1931, obtained provisional leave from the Tribunal to appeal to the Provincial Commissioner and on the 14th September, 1931, final leave :-Up to that date the defendant's cost had not been paid in compliance with the judgment and it is quite certain that in view of the provisions of section 77 (2) of the Native Administration Ordinance the order of the Tribunal granting final leave to appeal was illegal and a nullity.

On the appeal coming before the Provincial Commissioner for hearing, Counsel for the respondent in that Court took objection to the jurisdiction of the Provincial Commissioner to hear the appeal contending that the order granting leave to appeal was nugatory. Up to the time this objection was taken the costs of the defendant in the Court below had not been paid, nor had any sum of money sufficient to cover them been deposited in any Court.

The Commissioner, however, refused to regard the matter as not properly before the Court, but made an order that the appellant before him should at once pay the amount of the costs into his Court, and that having been done he proceeded to hear and determine the appeal setting aside the judgment of the Tribunal and entering judgment for the plaintiff with costs. The short question to be determined is had the Provincial Commissioner the power to make the order he did ?

First it is to be noted that when the objection to his jurisdiction was taken before the Provincial Commissioner there was ample time, had he struck out the appeal as not being in order, for the appellant to apply to the Tribunal for fresh leave, six months being the time within which the appeal could be brought.

Counsel for the plaintiff. however, it was stated at the Bar, when it was urged upon the Commissioner that the appellant should obtain proper leave to appeal argued against it, and preferred to take the risk of going on; and it was on his application and with his concurrence that the Commissioner's order was made. Therein I think he was unwise as I cannot find that the Commissioner had any power to make an original order granting leave to appeal.

Section 77 (1) of the Native Administration Ordinance provides that 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 may nevertheless grant leave to appeal.

The jurisdiction therefore which is conferred by the law upon the Provincial Commissioner for the purpose of granting leave is only an appellate jurisdiction which comes into force when leave has been refused by a Tribunal. But in this case leave had not been refused by the Tribunal, nor was there any reason to think it would be refused : on the contrary the Tribunal had shown its readiness to grant leave even when to do so was forbidden by the law: Nor does section 83, which regulates the practice and procedure of the Court in appeals brought before it under the Ordinance, give the Commissioner power to make any such order. On the contrary the section provides that the practice and procedure followed must be consistent with the Ordinance, while the two provisos for allowing the Court to extend the time specified by law for taking any step. and for rehearing an appeal, have no application; the former because this is not a case where a period of time has been fixed for paying the costs but a provision prohibiting something from being done until costs have been paid, the latter because it contemplates an appeal properly before the Court and not an appeal before the Court contrary to law.

It is argued, however, on behalf of the plaintiff-respondent that the object of section 77 (1) being merely to provide that costs were paid, and costs having now been paid, the provisions of the law have been substantially complied with and reference is made to the case of Kojo Pon v. Atta Fua Privy Council Appeal No. 48 of 1925, as showing that this Court should not allow a mere techinicality to stand in the way of doing justice between the parties.

Now if Kojo Pon v. Atta Fua were an authority for the proposition that this Court has power to dispense with any technicality which stood in the way of doing substantial justice between parties before it, the argument would be cogent, but it is not, as their Lordships of the Privy Council were careful to point out. The circumstances before their Lordships in that case were very different from the circumstances which obtain in this case. In that case a bond which had been ordered to be given as one of the conditions of appeal had turned out not to be properly signed though accepted as such by the Court's Register, and the Full Court of this Colony, on objection being taken that one of the conditions of the appeal had not been complied with, dismissed the appeal. The learned Lords of the Privy Council thought they were wrong and reversed their decision, but the reasons they gave for doing so are very instructive.

"Their Lordships wish to say," so runs the judgment, "that in  cases coming before them from the Dominions of the Crown their first consideration always is to secure, if possible, that substantial Taye justice is done. That may not always be possible. There may be D C J conditions in the local law or in the rules which preclude the  possibility of getting round technical obstacles and doing complete justice. But they think that in the case of the rules of procedure in the Gold Coast Colony there are no such obstacles.

The Court was invested with the widest powers and it might have adjourned the hearing of the appeal until a proper bond was executed, or it might have said that an affidavit was sufficient; and that was the more incumbent on the Court because its own Registrar had accepted the bond executed by Kwabena on behalf of the appellant."

In this case in my opinion there is no means of getting round the technicality which the law has set up-the payment of the costs is a statutory condition precedent to the granting of leave to appeal, application for which must first be made to the Tribunal and only on its refusal can the Commissioner grant leave to appeal.

That is altogether a different matter from a mere failure to comply with a rule of procedure, provision for circumventing which has been provided by law. Failure to comply with the provisions of section 77 (1) of the Native Administration Ordinance in my opinion had this effect, that it went to the very existence of the appeal: there was in fact nothing before the Court which the Commissioner could put into order, since by law leave to appeal could not be granted before the condition had been complied with.

Had the appeal been properly before the Court any defect with regard to the conditions attendant on it might have been got round-but it was not, and in my opinion the only proper course for the Commissioner to take was to strike out the appeal and allow the appellant to obtain proper leave and then to hear it. This case it seems to me is much stronger than the case of In re Dickinson Exip. Rosenthal, 20 Ch.D. 315, when the failure to pay money at or before an appeal' was entered as required by Statute was held :0 be fatal to the appeal, in the absence of any provision for curing the defect, although the money was paid within a short time after and there were good reasons for the delay. Our attention has been called by respondent's Counsel to section 79 of the Ordinance which provides that "in hearing any cause or matter under the provisions of this part a· Tribunal and the Provincial Commissioner's Court may follow any procedure and may admit such evidence as is sanctioned and authorised by native customary law with respect to such cause or matter or to any question arising therein" ; but it seems to me that a provision allowing a Court to follow native procedure at the hearing of an appeal does not authorise the Court to set aside the provisions of the Statute concerning the steps preliminary to bringing the appeal.

The fact of the matter is that it is most important when the law prescribes that a certain thing should be done, and that if it is not done certain consequences should follow, that this Court should not, because it seems to work a hardship in a particular case, assume to itself a power, which it does not possess, to' dispense with the law. That is pure illegality, and if the principle was once allowed it would be impossible to set bounds to it.

I think this appeal should be upheld, the judgment of the Provincial Commissioner set aside, and the judgment of the Tribunal restored. The appellant is entitled to his costs in this Court and in the Court below.

WEBBER, J.

I agree with the judgment of the learned President.

There is no appeal before the Court, in that the Court which granted leave had no jurisdiction to do so. In this case the costs in the Tribunal were fixed and ascertained viz., £21 2s. 6d. and the mandatory terms of the section prohibited the granting of any appeal until these costs were previously paid.

There is nothing on the record to show that leave was granted after the payment of these costs.

It is unnecessary to consider the effect of section 8 of West African Court of Appeal Ordinance, 1929, as there is no appeal before us to entertain. A pseudo appeal is before us, and in my opinion we have no jurisdiction to entertain it.

HOWES, J.

I have had the advantage of reading the judgment of the learned President, and it is with reluctance that I am obliged to dissent therefrom.

In effect, the judgment decides that because the costs of the defendant-respondent in the Native Tribunal had not been paid, before that Tribunal gave the plaintiff-appellant leave to appeal to the Court of the Provincial Commissioner, the proceedings before the Provincial Commissioner were null and void.

This case is but another example of the difficulties encountered in dealing with matters arising under that ill-drafted Ordinance. the Native Administration Ordinance, 1927.

There is a provision in section 128 thereof' for the making of regulations by the Governor with respect to the form and conditions of prosecuting appeals under the Ordinance, but up to the present time no such regulations have been made.

The only statutory condition as to appeals from the Paramount Chiefs Tribunal at present in force is that contained in section 77, which says that (1) a party desiring to appeal from a Paramount Chief's Tribunal (as in the present case) shall first obtain leave of that 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; and (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 each costs; and such Court (Le. the Appellate Court) shall not grant a stay of execution with respect to the said costs.

What is the meaning of the words " costs in the Tribunal " and whose costs ?

It does not say the costs of the respondent, which is what one would expect, had it been the intention of the legislature that these should be paid, as a condition precedent to granting leave to appeal. I read these words as capable of meaning the costs necessarily incurred in the Tribunal in connection with the appeal proceedings; in particular, the cost of preparing the record for appeal, and any other costs such as filing the notice of appeal, forwarding the record and so on. These are the only costs in which the Tribunal is interested, and the later reference to a "sum of money sufficient to satisfy such costs," suggests that the amount is uncertain; whereas if the costs in the Tribunal means the respondent's costs, these, in the ordinary course, would have been ascertained before the appellant decided to appeal.

Whatever may be the meaning of costs in such Tribunal, the last sentence to the sub-section " and such Court shall not grant a stay of execution with respect to the said costs" is, to me, utterly unintelligible. Firstly, unless the Tribunal had refused leave, and the appellant had moved the Court of the Provincial Com­missioner or District Commissioner for leave to appeal under sub-section (1), the matter would not be before" the Court" ; secondly, if " the sum of money sufficient to satisfy such costs" had once been paid or had been deposited in the Provincial Commissioner's or District Commissioner's Court, who would be likely to apply for the stay of execution which the Court is prohibited from granting? If the words " costs in the Tribunal " mean the respondent's costs, what would be the object in the appellant depositing them either in the Native Tribunal or in the Appellate Court, if they must at once be handed over to the respondent? And once they have been deposited what execution could then be stayed ? The sentence as to stay of execution seems to me quite meaningless; as it presupposes that the Court of the Provincial Commissioner or District Commissioner had jurisdiction over the suit, which, at this stage, viz., before leave to appeal had been granted, it has not.

Incidentally, there was no such provision in the (repealed) Native Jurisdiction Ordinance, on which the procedure under the new Native Jurisdiction Ordinance was based; and it appears to me to be a most unusual thing for the legislature to have fettered an appellate's right of appeal, instead of leaving a matter like the payment of costs to the discretion of the Tribunal from which the appeal lies.

At present the only condition necessary before leave to appeal from the Paramount Chief's Tribunal can be granted is that contained in section 77 (2). There is no mention of  " conditional" or  " final" leave and yet, as appears on page 43 of the record, the Paramount Chief, when granting the application for conditional leave to appeal, did so subject to conditions similar to those imposed in the case of an appeal from the Court of the District Commissioner to a Divisional Court, following the procedure laid down in the Rule~ of the Supreme Court. This he had no power under the Ordinance to do.

Although, by section 83 of the Native Administration Ordinance pending the making of other regulations, the Court of the Provincial Commissioner is to follow the practice and procedure of the' Supreme Court, this does not apply to Native Tribunal~. The costs awarded to the defendant in the original suit in the Native Tribunal were £21 2s. 6d. and to show the confusion in the mind of the Paramount Chief or of his clerk, one of the unauthorised conditions of giving leave to appeal was :-

II 2. To enter into Bond in the sum of £21 2s. 6d. in two sureties of £25 each to be justified, against costs in Appeal Court."

Apparently, he was of opinion that the respondent's costs in the appeal were going to be identical with those in the Native Tribunal.

This II conditional leave" to appeal was granted by the Paramount Chief on 9th September, 1931, and in addition, a stay of execution (apparently as to the £21 2s. 6d. costs in the original suit in the Native Tribunal) was granted.

The plaintiff-appellant duly performed all the conditions imposed by the Paramount Chief; and on the 14th September, 1931, the Paramount Chief (again following, without any statutory authority, the rules of the Supreme Court) granted II final leave to appeal" to the Court of the Provincial Commissioner (page 51).

It will be noted that since the suit related to the ownership of land, the appeal lay to that Court, and not to the Court of the District Commissioner, and that until the grant of final leave the suit was still in the Native Tribunal, and consequently was governed by the provisions of the Native Administration Ordinance and not by the Rules of the Supreme Court.

The appeal came before the Provincial Commissioner on the 2nd December, 1931 (p. 84), and was adjourned until the 10th December, 1931.

On that day objection was raised by Counsel for the defendant respondent that the Native Tribunal had no jurisdiction to give leave to appeal, as II under s.s. (2) of section 77 of the Native Administration Ordinance, leave to appeal shall not be granted unless costs shall have been paid," and submitted that this section had not been complied with.

The Provincial Commissioner ruled as follows :-" The Court is of opinion that to refuse to hear the appeal on the ground that the costs in the Native Tribunal have not been paid, while they are secured by bond, would be to fail to do justice between the parties, and overrules the objection of Counsel for the defendant ­respondent" : he ordered that the amount of the costs in the Native Tribunal be deposited forthwith in the Court."

Counsel for the defendant-respondent intimated that he wished to appeal from the Provincial Commissioner's decision overruling his objection, and contended that pending such appeal, the hearing of the substantive appeal should not proceed. The Provincial Commissioner disregarded this application and proceeded with the hearing of the appeal ex parte, after Counsel for the defendant­ respondent had left the Court. Subsequently, Counsel applied to the Provincial Commissioner for leave to appeal from the above decision, but his application was refused.

The hearing of Counsel for the respondent was continued; and the case was adjourned until the 12th December, 1931, on which day it was resumed in the absence of the defendant­respondent and his Counsel.

At the opening of the Court on that day, the Registrar announced that the amount of costs (viz., £21 2s. 6d.) awarded to the defendant in the Native Tribunal had been paid into Court.

After an adjournment for the making of a survey of the land, the hearing of the appeal was resumed on the 5th February, 1932, and on this occasion the defendant-respondent was again represented by Counsel, who addressed the Court on behalf of the defendant­respondent, and the case was adjourned for judgment which was given on the 12th February, 1932. By that judgment the appeal was allowed, and the judgment of the Native Tribunal was set aside, and a boundary, already fixed between the parties in a previous suit, was extended; and as the result, the land in dispute was divided into two approximately equal portions between the parties.

Now, if my reading of section 77 of the Native Administration Ordinance is correct, the Provincial Commissioner was wrong in holding that that section made it obligatory that the costs of the respondent should be paid before the Native Tribunal could give leave to appeal to the Provincial Commissioner, but for other reasons was correct in overruling he objection.

Apart from whether I am right or wrong as to the meaning of this section 77, I consider that the Provincial Commissioner was entitled to overrule the preliminary objection.

If I am wrong, the payment of the respondent's costs in the Native Tribunal was a step in the proceedings to be taken or completed before a specified time, viz., before leave to appeal was given by the Paramount Chief which leave was not to be given until the appellant had paid the costs in the Tribunal.

Under the first proviso to section 83 of the Native Administration Ordinance the Court of the Provincial Commissioner has the following power, viz., " to extend, on  such terms as it shall consider just, the periods of time specified by law for the taking or completion of any step in such proceedings except in the case of the periods of time specified in section 76 " (section 76 refers to the periods of time during which an appeal shall lie).

No conditions or procedure are laid down in the Ordinance as to how this power to extend the time for taking or completing steps in the proceedings is to be exercised.

In effect, the Provincial Commissioner extended the period of time by ordering the costs to be paid forthwith (after the point was raised before him), notwithstanding the fact that section 77 says they shall be paid before leave to appeal is given by the Paramount Chief.

Admittedly, he did so in a most informal manner-but, nevertheless, the result was the same. I t must be remembered that no one had been damnified by the irregularity of the Paramount Chief.

The mistake the latter had made was to accept a bond for the amount of the respondent's costs in the appeal, instead of receiving a cash payment for the respondent's costs in the Native Tribunal, if this was the intention of section 77 (2).

I fully appreciate the decision in In re Dickinson quoted by the learned President, but that was given 50 years ago, at a time when the Courts were inclined to be more rigid in enforcing the letter of the law than now, and the mistake in that case was made, presumably,- by a qualified solicitor and not by a semi-educated African Chief.

In my opinion, in dealing with all matters under the Native Administration Ordinance wherever possible a certain latitude must be allowed rather than a strict adherence to the letter of the law.

That this was the intention of the legislature is shown by the second proviso to section 83, which provides that the Provincial Commissioner" may, if he thinks justice so to require, follow any procedure and may admit such evidence as is sanctioned and authorised by native customary law with respect to such cause or matter or to any question arising therein." It has not been suggested that the procedure followed by the Provincial Com­missioner would be contrary to native custom. In my view, this proviso, by giving to the Provincial Commissioner a latitude in procedure, is an indication that the letter of the law is not to be rigidly followed in cases where justice requires that it should not be provided that such procedure is sanctioned by native customary law; and of course, where such procedure would not be contrary to English justice. In any case, can a Native Tribunal be blamed or is the native litigant to suffer when the legislature has failed to carry out what was obviously its intention, viz., that regulations governing the procedure in Appeals should be made: in point of fact they never have been made.

I also appreciate that if section 77 of the Native Administration Ordinance meant that the respondent's costs were to be paid iI1. cash, the letter of the law had not been fulfilled; but the fad remains that before the Provincial Commissioner started hearing the material portion of the appeal beyond the opening of Counsel for the defendant-respondent, these costs had actually been paid.

Did not the Provincial Commissioner only do what commoI1 sense demanded ?

The appeal was ripe for hearing; Counsel for both parties were present; the conditions laid down by the Paramount Chief had been fulfilled. Was the Provincial Commissioner, because of the Paramount Chief's mistake, to strike out the appeal, and order the appellant to start the appeal de novo, and again to go through all the various steps in order to perfect the procedure, by rectifying this unimportant mistake which, in fact, had already been rectified? The Provincial Commissioner could have done so, since the six months in which to appeal had not expired. Such a course would be not only repugnant to common sense, but I feel sure would never have been followed under native customary law.

Further, in my view, this was a case coming within section 38 of the Supreme Court Ordinance (as amended by Ordinance No. 29/1929). The Provincial Commissioner under section 83 of the Native Administration Ordinance pending the making of regulations under that Ordinance, is to follow the practice of the Supreme Court. Consequently in my opinion under section 38 of the Supreme Court Ordinance (which reads) :-

"Notwithstanding anything hereinbefore contained the Divisional Court (and therefore in this case, the Court of the Provincial Commissioner) may on any terms which it thinks just, entertain any appeal from a District Commissioner (or in this case from a Paramount Chief) from whom an appeal lies to the Divisional Court under this or any other Ordinance,"

the Provincial Commissioner was entitled to entertain the appeal on terms; which, in this case, was the payment of the defendant­respondent's costs (£21 2s. 6d.) forthwith in cash.

In the present state of development of this country, to invest Native Tribunals with the powers they are expected under the Native Administration Ordinance to exercise in judicial procedure, is to my mind analogous to giving to a child of three a razor to play with. The probability is that someone will suffer; and in my opinion it is the duty of the Supreme Court, whenever possible, to protect both the native courts and litigants, even if in so doing some sketching of the letter of the law may be involved.

To allow an appeal solely on the ground that some semi­educated Tribunal Registrar or a Paramount Chief has failed to appreciate the meaning of section 77 of the Native Administration Ordinance, and who, moreover, in this case in granting leave to appeal, inserted conditions which he had no authority to impose would, in my opinion, be nothing short of a denial of justice.

The plaintiff-appellant in the Native Tribunal did all that could be required of him in complying with the conditions imposed by the Paramount Chief. Could it be said, if the appellant had paid the amount of the costs by a cheque, which the Paramount Chief retained, instead of presenting for payment, that the appellant had not paid the costs, or II deposited a sum of money sufficient to satisfy such costs." In my view the erroneous, but bona fide acceptance by the Paramount Chief of a bond with justified sureties, was almost on all fours with such an instance, although he accepted it for the costs of appeal instead of for the respondent's cost •• in the Native Tribunal.

The Court of Appeal has heard the whole of the arguments in support of the appeal, the principal one having been the first ground-" because the Provincial Commissioner had no jurisdiction to hear the appeal." Apart from this the other grounds are trivial, and from the evidence, until the survey ordered by the Provincial Commissioner was made, it is clear that the Native Tribunal were under an entire misapprehension as to the position of the land in question-in fact, I think Counsel for the appellant as good has admitted this.

In my opinion the appeal should have been dismissed with costs, and the judgment of the Provincial Commissioner should have been continued.