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Kwaku Kumi & Anor V. Amaka Otchere (1934) LJR-WACA

Kwaku Kumi & Anor V. Amaka Otchere (1934)

LawGlobal Hub Judgment Report – West African Court of Appeal

Leave to Appeal under section 77 (1) of Native Administration Ordinance—Provision in section 77 (2) for payment of costs or deposit before granting leave—Actual costs must be paid or deposited—No discretion in Commissioner to estimate amount of deposit when costs not ascertained—Duty on appellant to move Tribunal to assess costs where respondent delays taxation.

Held : (Graham Paul, J. dissenting), leave was rightly refused. Appeal dismissed.

Frans Dove for Appellants.

J. H. Coussey for Respondent.

The following judgments were delivered :— GRAHAM PAUL, J.

This case originated in the Native Tribunal of the Adontenhene of Aburi. That Court gave judgment in favour of the plaintiffs, but on appeal the Tribunal of the Paramount Chief at the Akwapim State on 16th December, 1932 reversed that tdgment and gave judgment in favour of the defendant.

Against that judgment the plaintiffs are endeavouring to

ereise their right of appeal. They applied to the Paramount A.:kief’s Tribunal for leave to appeal and their application was 71,Ffused. The plaintiffs thereupon on 2nd February, 1933 filed t motion in the Provincial Commissioner’s Court for leave to appeal lacier section 77 (1) of the Native Administration Ordinance.

Section 77 (2) of that Ordinance provides 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 “.

In his affidavit in support of their motion the first plaintiff deposed inter atia:—

  1. That although the judgment was given since the 16th ” December, 1932, the defendant-respondent has not filed his ” bill of costs and I verily believe that he is delaying so that ” time may run against us.
  2. That we are willing to pay into this Honourable Court a sum ” of money sufficient to satisfy the defendant-respondent’s ” costs “.
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In dealing with this motion the Acting Commissioner of the Eastern Province said that he was satisfied that there had been unreasonable delay by the respondent in filing his bid of costs and that the delay was causing the appellant grave inconvenience in prosecuting his appeal. He noted that the appellant was prepared to deposit in Court a sum of money estimated to be sufficient to cover any costs awarded by the Paramount Chief’s Tribunal. lie ordered that the sum of £15 be deposited in Court to cover the costs in the Tribunal below.

On 2nd March, 1933 the said £15 was deposited in Court, and on 17th March, 1933 conditional leave to appeal was granted and a stay of execution pending hearing of the appeal. Notice was given to the respondent to that effect and final leave to appeal was granted on 19th April, 1933.

On the appeal coming before the Acting Deputy Commissioner of the Eastern Province on 20th July, 1933 Counsel for the respondent raised two preliminary objections :—

(1) that the appellants had not applied first to the Tribunal for leave to appeal and that therefore the conditional leave to appeal was wrongly granted by the Acting Commissioner,

and (2) that section 77 (2) had not been complied with and the appellant must deposit a further £85 before the appeal could proceed.

The Acting Deputy Commissioner, after taking evidence, repelled the first objection and that matter is not before this Court in this appeal. Nor is the question as to the stay of execution.

As regards the second objection the Acting Deputy Commissioner held that section 77 (2) had not been complied with, and that the appellant must deposit a further £85 in Court before the appeal could proceed.

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That order is in my opinion obviously bad. If section 77 (2) had really not been complied with the Deputy Commissioner could not, when the appeal came before him for hearing, make any order to put that right. The effect of non-compliance with section 77 (2)—if non-compliance there were—would be that the appeal was not before his Court at all. Furthermore there appears from the record to have been no admissible evidence upon which the Court could arrive at the figure of £85 as an extra amount to be deposited.

Parenthetically it should be noted that section 77 (2) refers oaly to costs in, the, Paramount Chief’s Tribunal and these costs, according to Counsel for the respondent in his argument to the Deputy Commissioner, were only £52 6s. 9d., i.e., only £37 6s. 9d. more than the £15 already deposited, and that extra amount of 137 6s. 9d. was in fact deposited in Court on 14th August, 1933.

The appeal again came before the Commissioner’s Court on 27th November, 1933 for hearing. Again Counsel for respondent took a preliminary objection under section, 77 but the Deputy Commissioner heard Counsel on the merits and reserved judgment. Counsel for the appellant was apparently not called upon to reply to the preliminary objection. On 9th December, 1933 the Deputy Commissioner gave judgment dismissing the appeal on the preliminary objection and not dealing with the merits of the appeal at all—holding that because of the preliminary objection he could mot do so. Against that judgment this appeal has been taken.

The whole question in this appeal is one of law—as to the =waning and effect of section 77 (2) of the Native Administration Ordinance.

My view of section 77 (2) is that it gives to a Court—in the,L.umsta,nces of this case the Commissioner’s Court—power to grant Heave to. appeal from a Paramount Chief’s Tribunal in either of two alternatives. Either when the appellant has paid the costs in Bch Tribunal or when he has deposited in Court ” a sum of money malficient to satisfy such costs “.

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The costs in this case were not assessed costs; they were apparently ordered to be taxed. When the appellant applied for leave to appeal the amount of the costs was not yet ascertained. The party entitled to costs had not filed his bill of costs. He had iareasonably delayed doing so.

I can find nothing in the Native Administration Ordinance, sr anywhere else, compelling a successful party to file his bill lei costs within any limited time. I know of no procedure or precedent by which such party could be forced to file his bill of Wits. He might be ill and unable to prepare or file his bill, and

that case it would be an. injustice to him to deprive him of his ,61oht to prepare and file a bill of costs. Yet the Ordinance does 7,1estrict the time for an appeal by the unsuccessful party to six tenths.

It is suggested that the effect of section 77 (2) is to enable a raccessful party, by delaying filing his bill of costs, to restrict w delay the unsuccessful party in the exercise of his specifically

en right of appeal. I am not prepared to give that amazing meaning and effect to section 77 (2) unless I am absolutely .gelled by the language of the section to do so. In my opinion lie language of the section does not compel me to do so.

Appeal dismissed.

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