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Dovlo Kudiabor V. Ijutohoke Kudanu (1940) LJR-WACA

Dovlo Kudiabor V. Ijutohoke Kudanu (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Construction of section 8 of the West African Court of Appeal Ordinance considered and its limitations explained—appeal dismissed.

Held : No jurisdiction to bear the appeal. Section 8 of the West Airican Court of Appeal Ordinance limited to appeals which lie by virtue of statutory provisions.

There is no need to set out the facts.

Silas Dove for Appellant.

A safu-Adjaye for Respondent.

.The following judgments were delivered :—

DEANE, C.J., GOLD COAST AND WEBBER, J.

The preliminary point taken in this appeal is a short one. It appears that the judgment against which the appeal is taken was delivered by the Provincial Commissioner on 16th October, 1931. By rule 10 of the West African Court of Appeal Rules it is provided that after three months from the date of a final judgment or decision application for leave to appeal shall not be entertained by the Court below. The judgment of the Provincial Commissioner who was sitting on appeal from a Tribunal was a final judgment and according to the rule he could not therefore entertain any application for leave to appeal after three months from the date of the judgment and the application in this case was in fact not made to him until the 11th April or nearly six months after when he gave conditional leave to appeal.

Inasmuch as the rule specially provides that after three months he should not entertain an application for leave to appeal it is clear that in granting leave the Provincial Commissioner was doing something which the rule specially prohibited him from doing, and it follows that his order must be regarded as a nullity and that this appeal is not properly before the Court.

Then the further question arises can this Court entertain the appeal under the circumstances? On behalf of the appellant it is argued that leave to appeal was obtained from the Provincial Commissioner within six months within which time the appellant might have obtained leave from the West African Court of Appeal

milder rule 11 and that it is a hard case that he should be deprived Kudiabcar of his rights to appeal because the Provincial Commissioner”‘ misapprehended his powers. Since if the application had been

refused the appellant might still have had time to make an Deane, C.J. application to the Court. I sympathise to some extent with the

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appellant although I need hardly point out that he is responsible for any step he takes ; but I am afraid this Court has no power under the rules to extend the time within which an application for leave to appeal can be made. It is bound by its own rules and were it to give leave itself now to the appellant to prosecute his appeal it would in effect be doing The very thing which the Provincial Commissioner did. This is not a case falling within Order 4 Rule 2 of the Rules of the Supreme Court, where parties may by consent enlarge or abridge the time and in case of their failure to agree the Court may order that the time for doing the acts provided for in the rules be enlarged or abridged. The limitation of the time within which appeals may be brought stands on a different footing and I know of nothing In the rules of the Supreme Court under which this Court may enlarge the time.

Then the effect of section 8 of the West African Court of Appeal Ordinance (No. 28 of 1929) remains to be considered. That section reads : ” notwithstanding anything hereinbefore contained the Court of Appeal may entertain any appeal from a Court below on any terms which it thinks just.”

At the first blush this section would seem to give unlimited discretion to this Court to entertain appeals in disregard of any provisions of the law whenever it seems to it to be just to do so. To put such an interpretation upon it however would to my mind be contrary not only to all general canons of’ interpretation but %mai& creaink; jattrAlliat With Uri VLaltaffik itt “utaxtuanty ‘into Yne administration of the law as would not be conducive to justice.

One instinctively turns therefore to the context in which this section occurs to see what the real meaning is and there one finds that it follows closely upon and is intimately connected with the preceding section 7 which deals with conditions of appeal. Whether it also depends upon the preceding six sections I do not decide as they are not relevant to this case and it is thereforeunnecessary to do so. Section 7 provides : ” Subject to the provisions of the next section the. Court of Appeal shall not entertain any appeal unless the appellant has fulfilled all the conditions of appeal imposed by the Court below as prescribed by rules of Court. Then follows section 8. The two sections must it seems to me be read closely together and then section 8 may be read as giving the Court power notwithstanding section 7 to dispense with the strict requirements of the law as laid down in section 7 in any case in which it seems to it just to do so. If therefore this preliminary objection were that one of the conditions of appeal laid down by the Provincial Commissioner had not been complied with this Court would have under section 8 the right to entertain the appeal if it thought it

just to do so notwithstanding section 7. But this objection goes
far beyond that. It is concerned not with the conditions of appeal
as fixed by the lower Court, but with the very existence of the appeal.

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When a lower Court by a valid order in fact made within the rules creates an imperfect thing this Court may disregard the imperfection and entertain the appeal which is properly before it notwithstanding that imperfection, but when as in this case the lower Court has done something directly contrary to the rules and has assumed to itself a power which is expressly taken away from it, there is no question of its creating an imperfect thing which the Appeal Court may consider and put right. It has created nothing and ex nikilo ‘aka fit.

The appeal therefore in my opinion must be dismissed with costs.

HOWES, J.

I have had the advantage of reading the judgment of the learned President and I concur as to the main issue, that the appeal must be dismissed on the ground that leave to appeal was granted out of time.

I am however reluctantly obliged to differ from the views expressed by the learned President as to the interpretation to be put on section 8 of the West African Court of Appeal Ordinance, 1929.

It is certainly obvious that section 7 of this Ordinance is to be read subject to section 8 ; and that the words ” subject to the provisions of the next section ” in section 7, diminishes the force of the absolute prohibition which it would otherwise impose. Nevertheless even if these words were absent, the terms of section 8 would operate to qualify section 7.

What then do these words in section 7 add to the qualifying terms of section 8 ? Why should it be assumed that because section 8 modifies section 7 section 7 modifies section 8 ?

The words in section 8 ” notwithstanding anything hereinbefore contained ” must refer to each and all of the preceding sections under the heading ” Appeals in civil cases ” unless there is anything in any of them which logically must be excluded from the operation of section 8.

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On a careful examination of each of the preceding sections I can find nothing : and in my view section 8 was intended, to give to the Court of Appeal the widest discretion in all cases in which an appeal lies. In effect this section provides a means of appeal in special cases in which it would be unjust to refuse to entertain an appeal, as for instance where the pecuniary amount involved was below the statutory figure but the principle involved was of the highest importance.

On the other hand, when a time limit during which an application for leave or special leave to appeal is fixed by rule, the provisions of section 8 would not apply, any more than they would, had a time limit in which to apply for leave to appeal been fixed by a definite ‘Limitations Ordinance.


In other respects I concur in the dismissal of the appeal with costs.

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