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CHIEF OLOTO AND ANOTHER
V.
THE CHAIRMAN, L.E.D.B
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT NIGERIA
12TH DAY OF MAY, 1950
2PLR/1950/38 (WACA)
OTHER CITATION(S)
2PLR/1950/38 (WACA)
(1950) XIII WACA PP. 57-62
LEX (1950) – XIII WACA 57 – 62
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
AMES, Ag. C.J., NIGERIA
LEWEY, J.A.
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BETWEEN:
1. CHIEF OLOTO
2. E. M. LABODE – Defendants-Appellants
AND
THE CHAIRMAN, L.E.D.B – Plaintiff-Respondent
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ORIGINATING COURT(S)
Motion to entertain appeal from Supreme Court
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Application to this Court to entertain an appeal where no appeal lies under section 3 of the West African Court of Appeal Ordinance – Discretionary powers conferred by section 9 of the said Ordinance invoked – Interpretation of section – Section 9 not applicable where no right of appeal exists – Only applicable to cure imperfections in an existing appeal
JUDGMENT AND ORDER:- Decisions given by Court per incuriam – Circumstances in which Court not bound by its decisions – Decisions in Kofi & Others v. Opanyin Kwaku Twum to be regarded as overruled – Proper treatments
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CASE SUMMARY
The appellants were the defendants.
The appellants moved this Court to entertain an appeal where the value of the land in dispute was only £10. Under section 3 of the West African Court of Appeal Ordinance (Cap 229), an appeal only lies in relation to a claim which is directly or indirectly for a sum of £50 or upwards. The defendants sought to invoke the provisions of section 9 of the said Ordinance. Section 9 reads as follows:-
“Notwithstanding anything herein before contained, the Court of Appeal may entertain any appeal from a Court below on any terms which it thinks fit.”
Counsel for the appellant founded his submission on the decision of this Court in the case of Kofi & Others v. Opanyin Kwaku Twum (1), and argued that this Court had unfettered discretion to entertain an appeal in disregard of any provisions of the law whenever it seems to it to be just to do so.
In determining this case the Court considered the circumstances in which it is not bound by its decisions given per incuriam.
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DETERMINATION OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. Following the decision in the case of Ohin Moore v. Akesseh Tayee, which went to the Privy Council, and other authorities, the Court held that it was impossible to entertain this appeal because no right of appeal existed. The Court may then disregard the imperfection and entertain the appeal.
2. The case of Kofi & Others v. Opanyin was incorrectly decided and came within two classes of decisions per incuriam where the Court is not bound to follow its own decisions. This case should be considered as overruled.
Cases referred to:
(1) Kofi & Others v. Opanyin Kwaku Twum, 4 W.A.C.A. 187
(2) Ohin Moore v. Akesseh Toyee, 2 W.A.C.A. 43 (Privy Council case)
(3) Dovlo Kudiabor v. Hutohoke Kudanu, 6 W.A.C.A. 14
(4) Nana Kweku Bofa v. Nana Kofi Kum, 6 W.A.C.A. 12
(5) Koji Pon v. Atta Fue, P.C. 1874 – 1928, 95
(6) re Dickinson ex part Rosenthal, 20 Ch.D. 315
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MAIN JUDGMENT
The following judgment was delivered:
LEWEY, J.A.
This is a motion praying this Court to entertain an appeal against the decision of the Supreme Court on an originating summons under the Lagos Town Planning Ordinance. The summons related to the award of compensation for the acquisition of a strip of land in the Glover Settlement. In the affidavit filed in support of the motion it was averred that, while the land in question was only worth about £10, there were a number of claims pending in the Supreme Court which related to the compensation payable for the acquisition of other lands in the same Settlement.
Under section 3 of the West African Court of Appeal Ordinance (Cap 229) an appeal lies to this Court only in relation to a claim which is, directly or indirectly, for a sum of fifty pounds or upwards. But by the terms of this motion, we are asked to entertain an appeal in this case by virtue of the provisions of section 9 of the West African Court of Appeal Ordinance. That section reads as follows:-
“9. Notwithstanding anything hereinbefore contained, the Court of Appeal may entertain any appeal from a Court below on any terms which it thinks fit.”
The sole matter for determination, therefore, is whether it can be said that, upon a true construction of section 9, this Court is empowered, in all the circumstances of the case, to hear the appeal although the subject matter is property valued at £10 only, and notwithstanding the requirements of section 3 of Cap. 229. Mr. F. R. A. Williams, who moved this Court on behalf of the would-be appellant, founded his submission on the decision of the West African Court of Appeal in 1938, in the Gold Coast case of Kofi & Others v. Opanyin Kwaku Twum (1), and asked that consideration should be given in the present case: to the fact that other pending actions-though brought by different persons-related to several adjoining strips of land, the total value of which, added to that of the land to which the motion relates, would be in excess of the amount of £50 required by section 3, Cap. 229.
In Kofi & Others v. Opanyin Kwaku Twum (1) there had been eight separate actions relating to land, and in only one of the eight cases had the subject matter of the dispute reached the appealable value laid down by the West African Court of Appeal Ordinance. The Court, nevertheless, decided to hear the appeal, and to apply, for that purpose, the provisions of section 8 of the (Gold Coast) West African Court of Appeal Ordinance, which corresponds, word for word, with section 9 of the West African Court of Appeal Ordinance in Nigeria. Relying on that decision, Mr Williams has asked this Court to apply the provisions of section 9 in the present case.
It appears, however, that the eight actions in Kofi & Others v. Twum (1) were consolidated and tried together, “for convenience,” as the report says.
Furthermore, the Court – which consisted of Sir Donald Kingdom, Sir Petrides and Sir Henry Webb – would seem plainly to have been influenced by the fact that the appellant had, apparently – by reason of the transfer of his case from the Native Court – been deprived of the right of appeal to the West African Court of Appeal, which would otherwise have been his: it is clear from the report of the case that the Court considered that such a result was contrary to the intention of the Legislature, and further, that it was, in their opinion, only by an oversight that provision for such a contingency had not been included in the West African Court of Appeal Ordinance. Moreover, it is to be observed that the judgment of the Court, as reported, contains no detailed examination of the language of the section, and no reasoned argument as to the construction placed upon the section which enabled the Court to apply its provisions to the appeal before it. The sole reference to the application of the section is to be found immediately after a passage where the Court baa been dealing with the unfortunate effects of the transfer of the appellant’s case, and reads as follows:
“This being so, we have decided to exercise in the ‘appellants’ favour the very wide powers to ‘entertain any appeal’ conferred upon as by section 8. …”
It has been said with truth that “Hard cases make bad law”, and it is, perhaps, not without significance that the concluding paragraph of the judgment contains the following:-
“It is only as an indulgence that the appellant’s application is granted.”
and that the headnote of the report reads:-
“Though no appeal as of right under section 3(1), owing to quantum of claims, appeal can be entertained under section 8; application, being the first under the new Rules, granted despite unjustifiable delay, but decision not to be treated as a precedent.”
The question is, whether the decision in Kofi & Others v. Twum (1) can be said to be good law and to be still binding on this Court. If it is, Mr Williams is entitled to succeed on his motion; if it is not, it seems plain to me that the motion must be dismissed.
I wish to say at once, that, apart altogether from the particular circumstances which appear to have influenced the Court in that case, I cannot avoid the conclusion, with all respect to the learned Judges who constituted the Court, that the decision in Kofi &, Others v. Twum (1) was given per incuriam. If I am right in this, it was a decision by which this Court can properly hold itself not to be bound. It appears to me that it falls within two of the three classes of decision per incuriam defined by Lord Greene, M.R. (as he then was) in Young v. Bristol Aeroplane Co. Ltd (1944), 2 All E.R., page 300, which constitute exceptions to the rule that the Court of Appeal is bound by its own decisions: for two of those classes, as explained by Lord Greene, are:
(1) those decisions where the Court has acted in ignorance of a previous decision of its own, and
(2) those decisions where the Court has acted in ignorance of the decision of a higher tribunal.
Upon those principles, the decision in Kofi & Others v. Twum (1) must, it seems to me, have been given per incuriam; for it is clear that the Court had not before it the judgment of the Judicial Committee of the Privy Council in Ohin Moor, v. Akesseh, Tayee (2) — to which I shall presently refer-and also that the attention of the Court had not been drawn to the decision of the West African Court of Appeal given six years previously in Doulo Kudiabor v. Hutokoke Kudanu (3), at that time unreported, but subsequently reported. As to the latter case, I am fortified in this view by the report of Nana Kweku Bofa v. Nana Kofi Kum (4). That case, which again was a Gold Coast case, was decided in 1940, more than a year after the decision in Kofi & Others v. Twum (1), and over seven years after the judgment of the West African Court of Appeal in Kudiabor v. Kudanu (3) It was an appeal in which the Court was asked to assume jurisdiction by applying the provisions of section 8 of the (Gold Coast) West African Court of Appeal Ordinance. But the Court of which Sir Donald Kingdom and Sir Bertie Petrides were again members – declined to do so, and in their judgment referred to the decision in Kudiabor v. Kudanu (3), and approved and followed the construction placed on section 8 ill that case, Kudiabor v. Kudanu (3) had, therefore, by then been brought to their notice: they drew attention to the fact that it had not been reported, and it is to be observed that when Vol. 6 of the W.A.C.A. Reports (1940) was published, it contained the report of Kudiabor v. Kudanu (3) as well as that of Nana Kewku Bofa v. Kum (4). ·
In my opinion, and with all respect, the true construction of section 9 of the West African Court of Appeal Ordinance in Nigeria, is that laid down by Deane, C. J., in Kudiabor v. Kudanu (3) in 1932, as followed and approved in 1940 in Bofa v. Kum (4), and not that of the case of Kofi & Others v. Twum (1) in 1938, which this Court should hold not to be binding upon it, as having been given per incuriam. The importance of continuity of decision in statutory construction is beyond question, and it seems to me therefore, imperative that attention should be directed to the defects of the decision in Kofi & Others v. Twum (1), and to the undesirability of placing reliance on it as has been done in the course of the argument on this motion.
It remains only to refer briefly to the judgment in Kudiabor v. Kudawu (3). That was a case where a Provincial Commissioner had granted leave to appeal, although the application was made to him after the expiry of the period during which he was allowed by the West African Court of Appeal Rules to entertain such an application. Despite the hardship to the would-be appellant, the West African Court of Appeal refused to hear the appeal, inasmuch as the Provincial Commissioner had done something which the rules specifically prohibited him from doing, with the result that his order was a nullity and the appeal was not properly before the Court.
It was sought to cure this by inviting the Court of Appeal to apply the provisions of section 8 of the (Gold Coast) West African Court of Appeal Ordinance. This the Court declined to do, holding that section 8 must be read closely with the preceding section which is concerned with conditions of appeal. Dealing with this point, Sir George Deane, C.J., the Presiding Judge, said:
“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 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.”
The construction placed upon section 8 by the majority of the Court – Deane, C.J., and Webber, J., (Howes, J., dissenting), was therefore, clearly that the section was not to be read as giving a discretion to the Court so as to enable appeals to be entertained despite the fact that they were not within, or in some respect failed to comply with, statutory requirements. Two passages from the judgment of Deane, C.J., in Kudiabor v. Kudanu (3) illustrate this. On page 15 of the report he says:-
“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 would certainly introduce such an element of uncertainty into the administration of the law as would not be conducive to justice.”
And again on page 16, this passage occurs:-
“This objection is concerned not with the conditions of appeal as fixed by the lower Court, but with the very existence of the appeal. When a lower Court by a valid order in fact made within the rule 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 nihilo nihil fit.”
With those observations, and with that construction of section 8, I respectfully agree.
This decision clearly illustrates the distinction between those minor or technical imperfections in an existing appeal which the Courts have power to cure, and those more serious defects which are incurable because they offend against statutory provisions with the result that there is no appeal to come before the Court. I do not wish to multiply authorities; but the distinction is of such importance and, in one form or another, comes so frequently before this Court for consideration, that I feel justified in citing a decision of the Judicial Committee of the Privy Council where the matter was carefully discussed and where the applicable principles were clearly enunciated.
The case in question is Ohin Moore v. Akesseh Tayee (2), to which I have already referred in relation to the judgment in Kofi & Others v. Twum (1). There a Native Tribunal in the Gold Coast had given judgment for the defendant and had ordered the plaintiff to pay the defendant’s costs. The plaintiff obtained leave to appeal to the Provincial Commissioner. When the appeal came before the Provincial Commissioner, the defendant took objection, and contended that the Commissioner had no jurisdiction to entertain the appeal, since the order giving leave to appeal was irregular in that, when it was given, the plaintiff had not paid the defendant’s costs: this, it was argued, amounted to a failure to comply, not only with the judgment of the Native Tribunal but also with the provisions of the Native Administration Ordinance which required that costs must be paid before leave to appeal could be granted. The Provisional Commissioner, however, overruled the objection, directed that the costs be paid into his Court, and proceeded to hear the appeal and to reverse the judgment of the Native Tribunal.
There was then an appeal to the West African Court of Appeal, constituted by Sir George Deane, C.J., and Webber and Howes, JJ. The Court held (Howes, J., dissenting) that the failure to comply with the requirements of the relevant statute was fatal, that the order granting leave to appeal had been ultra vires, and that no appeal had been properly before the Court of the Provincial Commissioner.
Deane, C.J., in the course of his judgment, referred to Kojo Pon v. Atta Fua (5), which had been cited to him in support of the contention that what amounted to a technicality should not be allowed to obstruct the course of justice. The learned Chief Justice, however, examined the reasons for the conclusions of the Judicial Committee and after distinguishing the facts and decision in that case from the case before him, observed that he considered that in re Dickinson ex parte Rosenthal (6) was more in point; for there, a failure to comply with a statutory requirement (namely to pay money at, or before, an appeal) had been held to preclude the Court from hearing the appeal, despite the fact that the money was paid shortly afterwards. Deane, C.J., went on to make it plain that he took the view that there was, in the appeal before him, no way of getting round the statutory conditions as to the payment of costs, because the matter was one which went to the very existence of the appeal; it might have been otherwise, he pointed out, had the defect merely been one relating to the conditions attendant on an appeal which was properly before the Court. In the concluding passages of his judgment, he said:-
“It seems to me that a provision allowing a Court to follow native procedure at the hearing of an appeal, does not authorise the Court to set aside the provisions of the statute concerning the steps preliminary to bringing the appeal. The fact of the matter is that it is most important, when the law prescribes that a certain thing should be done and that if it is not done certain consequences should follow, that this Court should not, because it seems to work a hardship .in a particular case, assume to itself a power which it does not possess, to dispense with the law. That is pure illegality, and if the principle was once allowed, it would be impossible to set-bounds to it.”
And to quote from Webber, J., at page 246 of the report:-
“There is no appeal before the Court in that the Court which granted leave had no jurisdiction to do so. It is unnecessary to consider the effect of section 8 (now section 9) of the West African Court of Appeal Ordinance, 1929, as there is no appeal before us to entertain. A pseudo appeal is before us, and in my opinion we have no jurisdiction to entertain it.”
The case of Ohin Moore v. Akesseh Tayu (2) went to the Judicial Committee of the Privy Council, where the decision of the majority of the West African Court of Appeal was upheld. I desire to refer only to two passages which occur in the judgment of Lord Atkin (pages 44 and 45 of the report). In the first passage Lord Atkin said:-
“Unfortunately, as was found by the majority of the Court of Appeal and as their Lordships think, the Provincial Commissioner had no jurisdiction to make any order at all, because no appeal was properly before him. After all, it is to be remembered that all appeals in this country and elsewhere, exist merely by statute, and unless the statutory conditions are fulfilled, no jurisdiction is given to any Court of Justice to entertain them.”
Again, at page 45, Lord Atkin concludes his judgment as follows:-
“The other grounds which are referred to by the learned Judge (i.e. the dissenting Judge) relate to powers which are given to an Appellate Court to adopt certain procedure, to waive rules, and to try to do substantial justice-all very important powers, but which can only be brought into play once the Appellate Court is seized of the appeal and has jurisdiction to entertain it.
“But the objection lies in limine in that the Provincial Commissioner had no jurisdiction at all, and therefore the reference to these powers, unfortunately, is irrelevant to the question of Provincial Commissioner being able to give relief.
“It is quite true that their Lordships, as every other Court, attempt to do substantial 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 bas occurred, then it is impossible for their Lordships or for any other Court to have jurisdiction. For these reasons their Lordships have come to the conclusion that the judgment given by the learned Chief Justice in the Court of Appeal is correct and they adopt his reasoning.”
In the light of all the authorities to which l have referred, the true character of the motion now before us seems plain to me. The motion came before us because the value of the property as to which it was desired to appeal. was far below the appealable value laid down in section 3 of the West African Court of Appeal Ordinance. I cannot regard that as a merely technical imperfection, nor as a defect which can be remedied by recourse to section 9 of the West African Court of Appeal Ordinance; for it relates to a failure to comply with an express statutory provision and is, therefore, on the authority of Kudiabor v. Kudanu (3) – which I consider to have been rightly decided – a matter outside the scope of that section.
It follows that, in my view, the motion must be dismissed.
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BLACKALL, P.
I have had the opportunity of reading the judgment of the Justice of Appeal and am in full agreement with it. The decision in Kofi & Others v. Opanyin Kwaku Twum (1) should be regarded as overruled.
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C. G. AMES. AG. C. J. (NIGERIA).
I concur.
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Application refused.
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