Egyir Ababio V. Kwodwo Tsia & Ors (1936)
LawGlobal Hub Judgment Report – West African Court of Appeal
Claim for ejectment—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—Objection taken and overruled.
Held : The application did not amount to ” Notice of Appeal ” within the meaning of section 76 (1) of the Native Administration Ordinance (Cap. Ill).
The objection was therefore good and should have been upheld ; appeal allowed and judgment of State Council restored.
The facts are sufficiently set out in the judgment. D. M. Abadoo, Jnr. for Appellant.
K. A. Korsah for Respondents.
The following joint judgment was delivered :-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND WEBBER, C.J., SIERRA LEONE.
In this case the plaintiff-respondent-appellant, Egyir Ababio, for and on behalf of Deshina family of Ayan Denkera, took out the following writ in the native Tribunal of Ayan Denkera State against Kwodwo Tsiah of Awiam and Kwa Amissah of Kodwo Appu :-
” The plaintiff’s claim is for an ejectment of the defendants from all that piece or parcel of land known as and called Awiam and Kodwo Appu, situate at Awiam and Kodwo Appu in Ayan Denkera. State in Saltpond District Central Province and bounded on all four sides by land belonging to the Plaintiff’s family known as Deshina and plaintiff further claims an injunction to restrain the defendants, their relatives, workmen, agents and servants from dealing with the land in dispute in any way pending judgment.”
The case was transferred to the State Council of Ayan Denkera under section 91 of the Native Administration Ordinance (Cap. 111). On the case coming before the State Council, Kobina Nyinka was joined as a third co-defendant. After hearing the case the State Tribunal gave judgment for the plaintiff on the 15th November, 1932, in the following terms :-
” We give judgment in favour of the plaintiff and order that the defendants be ejected by the plaintiff from Kojo Appu and Awiam lands, the subject-matter of this suit. We further order that the taxed costs of the plaintiff both
in the Native Tribunal of Ayan Denkera and in this council be paid by the Egyir defendants jointly and severally through this council to the plaintiff. The Ababio order of injunction issued herein on the 13th day of September, 1932, is herebyv.
discharged. We further order that the one-third tribute received by the Kwodwo Receiver under the injunction dated the 13th day of September, 1932, after Tsia
deducting the Receiver’s remuneration from the same, should be paid to the & Ors. plaintiff.”
Kobina Nyinka, on behalf of himself and Kwa Amissah, applied Webber, & ex parte to the State Council for leave to appeal against this judgment, c.j J.
but leave was refused under section 77 (2) of Chapter 111 on the 7th February, 1933.
On the 14th February, Mr. Korsah, solicitor for defendants-appellants, filed an ex parte motion in the Provincial Commissioner’s Court, Cape Coast, praying, on behalf of Kobina Nyinka and Kwa Amissah, for conditional leave to appeal against the judgment of the State Council. The motion paper was signed by Mr. Korsah himself and supported by an affidavit signed by Kobina Nyinka. On the motion coming before the Acting Commissioner, Central Province, on the 15th February, 1933, he ruled that the applicant should have gone to the Native Tribunal for leave after paying the costs into Court, and referred the application to the Tribunal to deal with. On the 17th February, 1938, the State Council granted leave. Kobina Nyinka then applied on behalf of himself and Kwa Amissah to the Provincial Commissioner’s Court and obtained from that Court conditional leave to appeal on the 6th March, 1933. Notice of the appeal was given by Mr. Korsah, defendants-appellants’ solicitor, to the Registrar of the Provincial Commissioner’s Court, the Registrar of the State Council and the plaintiff-respondent on the 18th March, 1933. But the defendants-appellants failed to prosecute their appeal within time and had to submit to the abandonment of the appeal of which they had’ given notice. But they were still within time to appeal and started fresh appeal proceedings. J. H. Ankrah, as representative of Kobina Nyinka, applied on the 2nd May, 1933, on behalf of Kobina Nyinka and Kwa Amissah to the Provincial Commissioner’s Court for conditional leave to appeal. On the matter coming before the Provincial Commissioner’s Court on the 3rd May, it was adjourned for a further affidavit. On the 9th May, 1933, the Provincial Commissioner’s Court granted fresh conditional leave to appeal. One of the conditions was :-
” 3. To give notice of this appeal to the plaintiff-respondent, the State Council of Ayan Denkera and any others directly affected by this appeal.”
” Conditions to be fulfilled within one month from to-day’s date.”
On the 17th May, 1933, i.e. six months and two days after the judgment, Mr. Korsah, solicitor for defendants-appellants, filed notice of appeal signed by himself, and this was served on the plaintiff-respondent on the 18th May, 1933. The other conditions were duly complied with and on the 12th June, 1933, the Provincial Commissioner’s Court granted final leave to appeal. On the 18th June, Mr. Korsah filed grounds of appeal signed by himself.
At the commencement of the hearing of the appeal in the Provincial Commissioner’s Court the plaintiff-respondent did not desire to be legally represented, and thereupon the Provincial Commissioner ruled that the appellants could not employ counsel.
After adjournments, at the resumed hearing the plaintiff-respondent took the preliminary objection that the appeal was not properly before the Court on the following gounds, inter alia.
“1. Because the notice of appeal given to him was signed by Mr. K. A. Korsah, solicitor for the appellants, who had not leave from the Court to appear for appellants and had therefore no status in the case and that anything done by him in this appeal is therefore of no effect.
- That for the same reasons no grounds of appeal have been served on him.
- That as defendants-appellants got conditional leave to appeal from this Court on the 6th March, 1933, and subsequently abandoned it, they also forfeited the leave to appeal given by the State Council, and should not have been given fresh conditional leave by this Court unless and until fresh leave was obtained from the State Council, which not having been done the appeal is not now properly before the Court.
- That the appeal is out of time inasmuch as the notice of appeal was not filed and served on him (respondent) until the 17th May, 1933, i.e. 2 days after the time limit of 6 months had elapsed.”
The Acting Commissioner of the Central Province, Mr. Lynch, overruled the preliminary objection on all points, and ruled on the 20th July, 1933, that the hearing of the appeal should proceed. The hearing continued before Mr. Bewes, Acting Deputy Commissioner, Central Province, who eventually gave judgment on the 31st July, 1934, allowing the appeal with costs. In the meantime Kobina Nyinka had died and J. H. Ankrah had been substituted for him as one of the defendants-appellants.
From that judgment the plaintiff-respondent has appealed to this Court, and amongst other grounds of appeal has raised again the same points as in his preliminary objection before Mr. Lynch. There are really only two of them which must be dealt with.
The first is the objection to Mr. Korsah signing papers in the proceedings. As to this we may point out that section 57 of Cap. 111 and section 19 of Cap. 113 do not apply to proceedings by way of appeal which are neither in a native Tribunal nor as yet removed therefrom by way of appeal, i.e. until final leave to appeal has been granted. This rules out part but not all of the objections on this point. For the rest we consider that the objection raised is a mere technicality about procedure, and that on the authority of the judgment of the Privy Council in Kojo Pon v. Alta Fua, P.C. 1874-1928, p. 95, it would be wrong to refuse to do justice between the parties on this ground.
But the second point is of a different nature and goes to jurisdiction. Section 76 (1) of Cap. l 11 reads as follows :—
” 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 :
- From a lower Tribunal to a paramount’s chief’s Tribunal, within two months.
- From a paramount chief’s Tribunal to the district commissioner’s Court, within four months.
- From a paramount chief’s Tribunal to the provincial commissioner’s Court, within six months.”
The present case is under paragraph (1) (c) and provided the words
give notice of appeal ” mean give notice to the respondent, the defendants-appellants-respondents were three days out of time, and the Provincial Commissioner’s Court had no jurisdiction to enter-rain the appeal to it. But it is suggested that the application to the Court for conditional leave to appeal amounts to giving notice within the meaning of the section. Now it may be that the draftsman had that intention, or it may be that the legislature deliberately intended that a successful litigant should be finally assured of his success when six months had passed and he had received no notice. However this may be, the legislature has said ” give notice of appeal ‘ and we feel compelled to give to those words their natural and ordinary meaning, i.e. as referring to the notice of appeal which in all appeal proceedings has sooner or later to be given to the respondent, we cannot hold that ex parte applications t6 the Court fulfil the requirement. The case is very similar to that of Ohene Moore v. Akesseh Tayee (not yet reported)* in which the Privy Council upheld the contention that the objection to jurisdiction was fatal.
For these reasons we are of opinion that the contention that the Provincial Commissioner’s Court had no jurisdiction to entertain the appeal should have been upheld when taken in that Court.
We accordingly allow the appeal and set aside the judgment of the Provincial Commissioner’s Court and order that the judgment of the State Council be restored.
The appellant is awarded costs in this Court assessed as £66 13s. 3d. and in the Provincial Commissioner’s Court to be taxed.