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JOSHUA D. ASIEDU
V.
YAO AMOH ALIAS YAO AMOH-AFORO
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
24TH DAY OF APRIL, 1937
2PLR/1937/31 (WACA)
OTHER CITATION(S)
2PLR/1937/31 (WACA)
(1937) III WACA PP. 174 – 175
LEX (1937) – III WACA PP. 174 – 175
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
WEBBER, C.J., SIERRA LEONE
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BETWEEN:
JOSHUA D. ASIEDU — Plaintiff-Appellant
AND
YAO AMOH ALIAS YAO AMOH-AFORO — Defendant-Respondent
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REPRESENTATION
Ofei Awere — for Appellant
K. A. Bossman — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Want of jurisdiction alleged in Court of Provincial Commissioner Court on two grounds — Faulty date in Notice of Appeal and leave to appeal not obtained from Court of Trial — Legal effect
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. That the Paramount Chief’s Tribunal merely failed to answer one written application for leave to appeal as equivalent to a refusal to grant leave to appeal. There having been no refusal to grant leave to appeal, the Provincial Commissioner had not power, on the date on which he purported to grant conditional leave to appeal, to grant such leave.
2. Tay v. Williams and Animle v. Otibo not followed, but Kojo Pon v. Atla Fua (Privy Council, 1874-1928, 95) followed and first ground overruled; appeal allowed on second ground and judgment of trial Court restored.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND WEBBER, C.J., SIERRA LEONE.
The grounds of appeal relied on at the hearing of this appeal were:
“That the Court of the Provincial Commissioner had no jurisdiction to hear the appeal because –
(a) the appellant in that Court had not first obtained leave to appeal from the Paramount Chief’s Tribunal in accordance with section 77 (1) of the Native Administration Ordinance and
(b) the appellant in that Court had appealed from a judgment not in existence.”
As to (b), appellant’s Counsel submitted, but did not press the point, that inasmuch as the judgment of the Paramount Chief’s Tribunal was delivered on the 30th December, 1935, while the notice of appeal stated that the judgment appealed against was delivered on or about the 29th December, 1935, the notice was bad, and as a result leave to appeal had been given from a non-existent judgment. He referred us to the case of Bordaah v. Ofoli (1913), Renner’s Reports 776, where it was held that judgment having been delivered on the 8th June while the notice gave the date of judgment as the 7th June, the notice was bad, and to two judgments of the Full Court where it was held that errors as to the dates of judgments in application for leave to appeal were fatal. (Tay v. Williams (1923). F.C. 1923-25, 61; Animle v. Otibo (1924), F.C. 1923-25, 167).
Having regard to the observations contained in the judgment of the Privy Council in the case of Kojo Pon v. Atta Fua (P.C. 1874-1928, 95) we are not prepared to follow the decisions just referred to.
Apart altogether from the fact that both in the notice of appeal and in the notice of motion for conditional leave to appeal the date of the judgment appealed against was stated to have been delivered on or about the 29th December, 1995, it is perfectly obvious from the record, regarded as a whole, that appellant had sought leave and been granted leave to appeal from the judgment of the 30th December, 1935, and had by a slip given the wrong date. In our opinion the maxim Certum est quod certum reddi protest applies, and it cannot be said that appellant appealed to the Provincial Commissioner’s Court from a judgment not in existence. This ground of appeal therefore fails.
As to ground of appeal (a) section 77 (1) of the Native Administration Ordinance lays down that a party desiring to appeal from a Paramount Chief’s Tribunal shall first obtain the leave of such Tribunal so to do, but that if that Tribunal refuses such leave the Provincial Commissioner’s Court may nevertheless grant leave to appeal. In the present case the appellant applied to the Paramount Chief’s Tribunal for leave to appeal and, as he received no reply to that application, he applied to and was granted leave by the Provincial Commissioner’s Court to appeal.
We are unable to regard the fact that the Paramount Chief’s Tribunal merely failed to answer one written application for leave to appeal as equivalent to a refusal to grant leave to appeal. There having been no refusal to grant leave to appeal, the Provincial Commissioner had not power, on the 28th February, 1936, the date on which he purported to grant conditional leave to appeal, to grant such leave.
Inasmuch as no effective leave to appeal has been granted the Provincial Commissioner’s Court had no jurisdiction to hear the appeal to his Court.
We allow the appeal, reverse the judgment of the Provincial Commissioner’s Court with costs which we assess at £17 15s. 3d. and restore the judgment of the Paramount Chief’s Tribunal. We further order that the appellant’s taxed costs in the Provincial Commissioner’s Court be paid by respondent.
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