,
Power of Transfer of Resident
from Native Court to High
CourtSec.
25 Cap. 5.
Judgment was entered in the
Native Court, Calabar, for £11
Is. 6d. Case and costs in favour
of plaintiff against defendant.
On review by the District stated
by Officer judgment was altered
to £1 4s. 0d. and the clothes
given in Mosque, High
to be paid in two weeks from
date of review. Thereafter the
Resident, Court Calabar
Province, purporting to act
under section 25 (1)
(c)
of Native Courts . Ordinance
(Cap. 5) transferred suit to the
Magistrate's Court, Calabar, but
subsequently amended this order
by transferring the case to the
High Court
where it came before the Chief
Judge.
The Chief Judge, by way of case
stated, submitted two questions
to the Court as is more
particularly shown in the
judgment.
No appearance by either party.
The following judgment was
delivered:-
WEBBER, C.J., SIERRA LEONE.
This case came before the Chief
Judge of the High Court at
Calabar under an Order of
Transfer signed by the Resident
of Calabar Province on 8th May,
1935, and amended by him on the
7th June, 1935.
A claim in the Native Court
Calabar was filed by one Shule
Akese against Fatumo for refund
of £13 11s. 6d. It was heard and
determined by that Court on 14th
February, 1935, and judgment was
entered for the plaintiff for
£11 Is. 6d. and costs. The case
was re-opened for further
evidence and the former judgment
was confirmed. This case was
reviewed by the District Officer
and judgment was entered for the
plaintiff on 9th April, 1935,
for £1
48. 0d. and the clothes given in
Mosque, to be paid in two weeks
from date.
On 8th May, the Resident made an
Order of Transfer under section
25 (1)
(c)
of the Native Courts Ordinance
transferring the suit to the
Court of the Magistrate, Calabar
Magisterial Area and this Order
was amended by him on the 7th
June, 1935, by which he
transferred the case to the High
Court. Being uncertain as to the
legality and effect of this
Order as amended by the
Resident, the Chief Judge of the
High Court submits the following
questions for the decision of
the West African Court of
Appeal:-
(1) Is the said Order as amended
legal and valid? (2) If so what
is its effect
(if any)?
As to the first question the
answer must depend upon the
construction to be placed upon the
relevant sections the terms of
which it is convenient now to set
out in full.
~section 25 (1)
(c)
gives the Resident power to:-
"
order the transfer of any cause or
matter either before trial or at
any stage of the proceedings,
whether before or after sentence
is passed or judgment is given, to
another Native Court or to a
Magistrate's Court or to the High
Court."
Section 25 (4) reads as follows:-
"
(4) An order made or sentence
passed under sub-section (1) may
be amended by the Resident or
District Officer within one month
of his making the order or passing
the sentence on recording his
reasons for such amendment in
writing in the Court Judgment
Book."
There can be no doubt as to the
power of a Resident or District
Officer to ~mend an Order of
Transfer and the answer to the
first question is that the said
Order as amended is legal and
valid.
As to the second question it seems
to me that the whole subsection
25 (1)
(c)
is a contradiction in terms.
The power to transfer a cause "at
any stage of the proceedings"
applies so long as anything
remains to be done to complete the
judgment.
Op. The Duke of Buccleuch 1892 p.
201 and where the proceedings are
complete the power is gone-Re
Palmer v. Hosken
1898 1 Q.B. 131.
To transfer a cause after judgment
given as in this case has no
effect as no' rehearing can be
implied, the proceedings having
terminated.
The answer to the second question
is that such an order as in this
case has no effect.
YATES, Acting O.J., GOLD OOAST.
I
concur.
KINGDON, O .. I., NIGERIA.
I
concur.
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