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Caretaker Kabina Nemmi V. Caretaker Ediay (1940) LJR-WACA

Caretaker Kabina Nemmi V. Caretaker Ediay (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Original trial in State Council—Appeal therefrom to Provincial Commissioner’s Court—Application for conditional leave to appeal made ex parte within time but notice of appeal to Respondent given out of time–Appeal dismissed.

Held : The application did not amount to ” Notice of Appeal ” within the meaning of section 76 (1) of the Native Administration Ordinance (Cap. 1.11) which was the law in force at the time of the proceedings so far set out.

Ohelle Moore v. Akesseb Tayee (2. W.A.C.A. 43) and Egyir Ababio v. Kwadwo Teia and others (3. W.A.C.A. 110) followed.

The facts are fully set out in the judgment.

F. Awoonor Williams for Appellant. R. S. Blay for Respondent.

The following judgment, with which the other members of the Court were in agreement, was delivered :–

DOORLY, J., GOLD COAST.

This is an appeal from the judgment of the Commissioner of the Western Province dated 26th January, 1939, whereby be dismissed an appeal by the present appellant from a judgment of the State Council of Western Nzima in favour of the present respondent.

• The Provincial Commissioner held that the appeal was not properly before him for the reason that the predecessor of the Commissioner, having before him an application by the appellant for leave to appeal after refusal (as he held) of such leave by the State Council, did not deal with the application but merely invited the State Council to grant leave. This the Commissioner considered to be contrary to law as by such a request his predecessor removed from the State Council the discretionary power given to it by section 77 of the Native Administration Ordinance (Colony) (Cap. 111 1928 Laws, now section 82 of Cap. 76 of the 1936 Laws.)

The proceedings as shown by the record were as follows :—

The State Council gave judgment on the 22nd December, 1934 ; on the 22nd January, 1935, a motion ex parte for leave to appeal was filed by the present appellant in the State Council. There is nothing to show that that motion was heard until a considerable time later.

In reply to a letter dated the 1st February, 1935, from the NeMini appellant (which has not beenn-rnade an exhibit), the President of Edi:v. the State Council sent a letter to the appellant dated 4th February,-‘.–

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1935, in which he stated that “neither copy of conditions or certified poorly. J•. copy of proceedings can be furnished to you . . until you Gekl c°1111‘ have paid . . . L50 as per paragraph 3 of the bye-laws passed

by the State Council of Western Nzirna on -5th day of September, 1934.” On the 13th February, 1935,_ the appellant filed a motion as party in the. Court of the Commissioner of the Western Province flow conditional leave to appeal and stated that the State Council bad refused to grant such leave. This motion came on on the 20th February, 1935, and, after the appellant had produced the letter of 4th February, 1935, from the President of the State Councils the motion was adjourned for the production of the bye-law, referred to therein. On the 30th May, 1935, the motion was heard and after taking the evidence of the clerk to the State Council and perusing the Bye-law No. 3, the Commissioner held that the bye-kw was not valid and ” asked ” the State Council to grant leave to the appellant to appeal.

The motion of the appellant in the State Council for conditional have was then heard. It is stated in the record to have been filed on the 31st January, 1935, but this is in direct contradiction of the original motion-paper which contains the note of the Registrar of the Council that it was filed on the 22nd January, 1935.

There can, however, be little doubt that it was the original ‘notion for conditional leave that was heard. This was on the 1st July, 1935, and conditional leave was granted three months being given by the State State Council to fulfil the ccrnaitions, the third of which was to give notice of appeal to all parties directly affected by the appeaL

Notice of appeal was filed on the 18th July, 1935, and was served on the respondent on the. 26th July, 1935. Final leave uas granted az carte to the appellant on the 24th August, .1935.

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All motions up to this date had been ax party the respondent. Thus the judgment sought to be appealed against was dated 28th December, 1934, and the first notice which the respondent had of the proposed appeal was on the 26th July, 1935, over six months from the date of judgment:

Section 76 of the Native Administration Ordinance (Cap. 111 el 1928 Laws), which was the law in force at the time of the

proceedings so far set out, reads as follows :—

E

, 76. No appeal shall lie under section 73, section 74, or section 75 unless the party appealing shall give notice of appeal within the proper periods hereinafter in this section prescribed, reckoning from the date of the decision appealed against, namely :

” (1)

  1. From a Paramount Chief’s Tribunal to the Provincial Commissioner’s Court, within six months “.

The meaning of the words ” give notice of appeal ” was considered by this Court in the case of Egyir Ababio v. Kwadwo Tsia and Others (III W.A.C.A. p. 110), when it was held that the words have their natural and ordinary meaning i.e. that they refer to the notice of appeal which in all appeal proceedings has .sooner or later to be given to the respondent, and that ex parte applications to the Court do not fulfil the requirement.

Section 90 of the Native Administration Ordinance (Gap. 111 1928 Laws now section 95 Cap. 7G) provides (after setting out the jurisdiction of a State Council)

It (1)

in the exercise of, or for the purposes

of, such jurisdiction the State Council shall be guided, as near as may be, and subject to the provisions of any regulations, by the procedure followed in a Paramount Chief’s Tribunal. And, save as may with respect to certain particular cases otherwise by express enactment he provided, a State Council in the exercise of, or for the purposes of, its jurisdiction as aforesaid shall have powers corresponding to those of a Paramount Chiefi Tribunal.

” (2) The like appeals shall lie from a State Council. as lie from a Paramount Chief’s Tribunal “

No special provision has been made in respect of the time in which appeals may be brought from a State Council. It follows, therefore, from section 90 (2) that when and where an appeal would not lie from a Paramount Chief’s Tribunal, it does not lie from a State Council.

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Had the trial of this action been in a Paramount Chief’s Tribunal, the appeal to the Provincial Commissioner’s Court would not have lain for the reason that notice of appeal was not given within six months of the date of the decision appealed against. Similarly, the appeal did not lie from the decision of the State Council and for the same reason.

No question of extending the time can possibly arise, for, by the first proviso to section 83 (now section 88 of Cap. 76), power to extend time in the case of the periods of time specified in section 76 (now 81) is specifically withheld.

It follows that the position here is precisely, that found by Lord Atkin in Ohene Moore v. A kesse Tayee (2 W.A.C.A. p. 43) when he said ” But the objection lies in limine in that the Provincial Commissioner had no jurisdiction at all . . . . It is quite true that their Lordships, as every other Court, attempt to do 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 I am of opinion that no appeal lay in the circumstances to the Provincial Commissioner’s Court and he was right in dismissing the appeal.

This is without doubt another ” hard case ” under the Native Administration Ordinance ; but amendment is a matter for the consideration, not of the Courts, but of the Legislature.

The appeal should in my opinion be dismissed with costs. The following Order was made :—

KINGDON, P.


The appeal is dismissed with costs assessed at £24 3s.

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