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OKAIKOR CHRU
V.
R. S. SACKEY
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST (GHANA)
27TH DAY OF NOVEMBER, 1930
2PLR/1931/16 (WACA)
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OTHER CITATION(S)
2PLR/1931/16 (WACA)
(1930) I WACA PP. 98-99
LEX (1930) – I WACA PP. 98-99
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BEFORE THEIR LORDSHIP(S):
DEANE, C.J., THE GOLD COAST COLONY
KINGDON, C.J., NIGERIA
HALL, J.
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BETWEEN:
OKAIKOR CHRU (AFIEYE SUBSTITUTED — Plaintiff-Respondent
AND
R. S. SACKEY (J. K. MUFFAT SUBSTITUTED) — Defendant-Appellant
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REPRESENTATION
J. Glover-Addo — for the Defendant-Appellant
A. W. Kojo Thompson — for the Plaintiff-Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Application to appeal brought pursuant to the Native Administration Ordinance, section 77(2) — Where there is a prescribed condition precedent to obtain leave to appeal — Failure thereto — Implication for jurisdiction of court of appeal
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CASE SUMMARY
The Appellant, who had been unsuccessful in a case before the Tribunal of a Divisional Chief, succeeded on appeal before the Tribunal of the Paramount Chief. The Respondent obtained leave to appeal to the Court of the Provincial Commissioner, although he had failed to comply with a condition laid down by law as necessary before such leave could be granted. The Provincial Commissioner decided in the Respondent’s favour. The Appellant appealed to the West African Court of Appeal, which decided that as the Respondent had failed to comply with the law before obtaining leave to appeal to the Provincial Commissioner’s Court, the latter Court had no jurisdiction to hear his appeal and that therefore the decision of the Tribunal of the Paramount Chief stood of full effect.’ (Kojo Pon Atta Fua, P.C. 1874-1929, 95, distinguished).
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MAIN JUDGMENT
The following judgment was delivered by Hall, J. and concurred in by Deane, C.J. the Gold Coast Colony and Kingdon, C.J. Nigeria:
HALL, J.
This is an appeal from the judgment of Mr. Applegate, Acting Commissioner, Eastern Province, dated 25th June last, reversing the decision of the Ga Manche’s Tribunal which in turn had reversed the decision of the Tribunal of the Asere Manche.
Mr. Glover-Addo who appeared for the Defendant-Appellant submitted that this Court had no jurisdiction to hear this appeal on its merits inasmuch as the Provincial Commissioner had no jurisdiction and referred us (a) to the order of the Provincial Commissioner granting conditional leave to appeal and (b) to section 77 (2) of the Native Administration Ordinance.
That subsection reads 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.”
Mr. Glover-Addo pointed out that prior to grant of leave to appeal the peremptory order set forth in the above section had not been carried out, and submitted that the result was that the judgment of the Ga Manche’s Tribunal dated 28th July, 1928 stood of full effect. He also referred us to the record of appeal in order to show that he had called the attention of the Provincial Commissioner to the fact that the aforesaid section had not been substituted) obeyed but without avail.
Mr. Kojo Thompson who appeared for the Plaintiff-Respondent first attempted to show on various grounds that the Tribunal of the Ga Manche had had no jurisdiction to hear the appeal from the Asere Manche’s Tribunal. He submitted inter alia —
(1) That the appeal to the Ga Manche was barred by the effluxion of time in view of section 24 of the Native Jurisdiction Ordinance, which was the Ordinance in force at the time the appeal was taken.
(2) That in any event an appeal from an inferior Tribunal to a Head Chief’s Tribunal must be taken within a reasonable period of time.
(3) That the Ga Manche’s Tribunal having ordered certain conditions for appeal they had to be carried out whether or not they were laid down by law as being necessary preliminaries thereto:
As regards (1) it is clear that section 24 o the Native Jurisdiction Ordinance only applied where an appeal from a Tribunal was before the English Courts. As regards (2) the Tribunal must have thought the time reasonable or the appeal would not have been heard.
As regards (3) the conditions were in fact performed Mr. Kojo Thompson then referred us to the case of Kojo Pon v. Atta Fua (P.C. 1874-1928 page 95), and submitted that his client should be allowed to pay the costs in question now and that, having been done, the appeal should proceed. In the case just cited, put shortly, the Privy Council held that there was any discretion – the Full Court which should have been exercised. The present case in my opinion is quite different, nothing having been pointed out to us in the Native Administration Ordinance which allows any discretion to be exercised on failure of payment of costs as ordered in the section.
In my opinion the objection taken is fatal and the Defendant-Apellant must succeed on the ground of lack of Jurisdiction both in this Court and the Court of the Provincial Commissioner. In the event, therefore, the judgment of the Ga Manche already referred to stands of full effect. Defendant-Appellant must have costs of this appeal assessed at £37 19s. 6d.
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