Practice -Native Administration
Ordinance, section
77 (2)-Condition
precedent to leave to
appeal-Condition not
performedCourt wtihout
jurisdiction to hear appeal.
The Appellant, who had been
unsuccessful in a case before
the Tribunal of a Divisional
Chief, succeeded on appeal
before the Tribunal of the
Paramount Chief. The Respondent
obtained leave to appeal to the
Court of the Provincial
Commissioner, although he had
failed to comply with a
condition laid down by law as
necessary before such leave
could be granted. The Provincial
Commissioner decided in the
Respondent's favour. The
Appellant appealed to the West
African Court of Appeal, which
decided that as the Respondent
had failed to c0mply with the
law before obtaining leave to
appeal to the Provincial
Commissioner's Court, the latter
Court had no jurisdiction to
hear his appeal and that
therefore the decision of the
Tribunal of the Paramount Chief
stood of full effect.
(Kojo Pon v. At/a Fua, P.C.
1874 -1928, 95, distinguished).
]. Glover-Addo for the
Defendant-Appellant.
A. W. Kojo Thompson
for the Plaintiff-Respondent.
The following judgment was
delivered by Hall, J. and
concurred in by Deane, C.J. the
Gold Coast Colony and Kingdon,
C.J. Nigeria :-
HALL, J.
This is an appeal from the
judgment of Mr. Applegate,
Acting Commissioner, Eastern
Province, dated 25th June last,
reversing the decision of the Ga
Manche's Tribunal which in turn
had reversed the decision of the
Tribunal of the Asere Manche.
Mr. Glover-Addo who appeared for
the Defendant-Appellant
submitted that this Court had no
jurisdiction to hear this appeal
on its merits inasmuch as the
Provincial] Commissioner had no
jurisdiction and referred us
(a)
to the order of the Provincial
Commissioner granting
conditional leave to appeal and
(b)
to section 77 (2) of the Native
Administration Ordinance.
That subsection reads 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, and such Court shall not
grant a stay of execution with
respect to the said costs."
Mr. Glover-Addo pointed out that
prior to grant of leave to
appeal the peremptory order set
forth in the above section had
not been carried out, and
submitted that the result was
that the judgment of the Ga
Manche's Tribunal dated 28th
July, 1928
stood of full effect. He also
referred us to the record of
appeal in order to show that he
had called the attention of the
Provincial Commissioner to the
fact that the aforesaid section
had not been obeyed but without
avail.
Mr. Kojo Thompson who appeared for
the Plaintiff-Respondent at first
attempted to show on various
grounds that the Tribunal of the
Ga Manche had had no jurisdiction
to hear the appeal from the Asere
Manche's Tnbunal. He submitted
inter alia.
(1) That the appeal to the Ga
Manche was barred by the effiuxion
of time in view of section 24 of
the Native Jurisdiction Ordinance,
which was the Ordinance in force
at the time the appeal was taken.
(2) That in any event an appeal
from an inferior Tribunal to a
Head Chief's Tribunal must be
taken within a reasonable period
of time.
(3) That the Ga Manche's Tribunal
having ordered certain conditions
for appeal they had to be. carried
out whether or not they were laid
down by law as being necessary
preliminaries thereto.
As regards (1) it is clear that
section 24 0 the Native
Jurisdiction Ordinance only
applied where an appeal from a
Tribunal was before the English
Courts. As regards (2) the
Tribunal must have thought the
time reasonable or the appeal
would not have been heard.
As regards (3) the conditions were
in fact performed.
Mr. Kojo Thompson then referred us
to the case of Kojo Pon v. At a
Fua (P.C. 1874-1928 page
95), and submitted that his
client should be allowed to pay
the costs in question now and
that, having been done, the appeal
should proceed. In the case just
cited, put shortly, the Privy
Council held that there was a
discretion in the Full Court which
should have been exercised. The
present case in my opinion is
quite different, nothing having
been pointed out to us in the
Native Administration Ordinance
which allows any discretion to be
exercised on failure of payment of
costs as ordered in the section.
In my opinion the objection taken
is fatal and the
DefendantAppellant must succeed
on the ground of lack of
Jurisdiction both in this Court
and the Court of the Provincial
Commissioner. In the event,
therefore, the judgment of the Ga
Manche already referred to stands
of full effect.
Defendant-Appellant must have his
costs of this appeal assessed at
£37 19s. 6d. |
