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KWAKU KUMI AND ANOTHER
V.
AMAKA OTCHERE
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST (GHANA)
3RD DAY OF DECEMBER, 1934
2PLR/1935/28 (WACA)
OTHER CITATION(S)
2PLR/1935/28 (WACA)
(1934) II WACA PP. 40-42
LEX (1934) – II WACA PP. 40-42
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BEFORE THEIR LORDSHIPS:
DEANE, C.J., GOLD COAST
YATES, J.
GRAHAM PAUL, J.
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BETWEEN:
KWAKU KUMI AND OTCHERE KWABENA — Plaintiffs-Appellants
AND
AMAKA OTCHERE — Defendant-Respondents
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REPRESENTATION
Frans Dove — for Appellants
J. H. Coussey — 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:- 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 — Requirement that actual costs must be paid or deposited — Commissioner’s exercise of discretion to estimate amount of deposit when costs not ascertained — Validity of — Whether there is duty on appellant to move Tribunal to assess costs where respondent delays taxation
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held: (Graham Paul, J. dissenting)
1. 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 as the non-compliance rendered the appeal incompetent.
2. There is nothing in the Native Administration Ordinance, or anywhere else, compelling a successful party to file his bill of costs within any limited time. I know of no procedure or precedent by which such party could be forced to file his bill of costs. He might be ill and unable to prepare or file his bill, and in that case it would be an injustice to him to deprive him of his right to prepare and file a bill of costs. Yet the Ordinance does restrict the time for an appeal by the unsuccessful party to six months.
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MAIN JUDGMENT
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 the Akwapim State on 16th December, 1932 reversed that judgment and gave judgment in favour of the defendant.
Against that judgment the plaintiffs are endeavouring to exercise their right of appeal. They applied to the Paramount Chief’s Tribunal for leave to appeal and their application was refused. The plaintiffs thereupon on 2nd February, 1933 filed a motion in the Provincial Commissioner’s Court for leave to appeal Oder 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 alia:
“8. 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.
9. That we are willing to pay into this Honourable Court a sum of money sufficient to satisfy the defendant-respondent’s costs “.
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 bill 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. He 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.
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 only 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 68. 9d., i.e., only £37 68. 9d. more than the £15 already deposited, and that extra amount of 37 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 section77 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 not do so. Against that judgment this appeal has been taken.
The whole question in this appeal is one of law—as to the meaning 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 circumstances of this case the Commissioner’s Court – power to grant leave to appeal from a Paramount Chief’s Tribunal in either of two alternatives. Either when the appellant has paid the costs in such Tribunal or when he has deposited in Court “a sum of money sufficient to satisfy such costs”.
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 reasonably delayed doing so.
I can find nothing in the Native Administration Ordinance, or anywhere else, compelling a successful party to file his bill of costs within any limited time. I know of no procedure or precedent by which such party could be forced to file his bill of costs. He might be ill and unable to prepare or file his bill, and in that case it would be an injustice to him to deprive him of his right to prepare and file a bill of costs. Yet the Ordinance does restrict the time for an appeal by the unsuccessful party to six months.
It is suggested that the effect of section 77(2) is to enable a successful party, by delaying filing his bill of costs, to restrict or delay the unsuccessful party in the exercise of his specifically given right of appeal. I am not prepared to give that amazing meaning and effect to section 77(2) unless I am absolutely [so] compelled by the language of the section to do so. In my opinion the language of the section does not compel me to do so.
It is my view that the words in section 77(2) “a sum of money sufficient to satisfy such costs ” can in their context mean only “a sum of money sufficient in the opinion of the Court to satisfy such costs”
Under this section the Court of the Commissioner in this case was given the power and was charged with the duty to grant, on application, leave to appeal on the deposit of a sufficient sum of money to satisfy the costs in the Paramount Chief’s Tribunal.
Faced with such an application, with no unreasonable delay in the filing of the bill of costs, the Court might possibly delay granting the leave to appeal for a time. The Court might possibly fix an amount so large as to be prohibitive. Where–as in this case—there has been to the satisfaction of the Court unreasonable delay in filing the bill of costs the Court, in my opinion, would be failing in its duty under the section if it did not assess what it considered to be a sufficient sum to satisfy the costs in question and make the deposit of such sum à condition precedent to granting the leave to appeal. It stands to reason that in fixing such an amount the Court would probably err one way or the other. That, however, is a risk which the successful party in the Court below must incur as a penalty for his unreasonable delay in filing his bill of costs.
I regard as monstrous the proposition to the contrary that by delay of any kind in getting his costs taxed the successful party can in any way hamper, delay, or restrict the other party in the exercise of his right of appeal—perhaps even deprive him of his appeal altogether.
A position suggestively analogous is to be found in the long established practice of the Supreme Court in this and other West African Colonies in regard to the cost of transmitting the record of appeal. It is, by the rules and the practice, an essential condition precedent to the grant of final leave to appeal that the appellant should pay the cost of making and transmitting the record of appeal. In the Rules of this Court, for instance, it is laid down that only where the appellant has paid the amount of that cost, “and not otherwise”, the Court shall give final leave to appeal. The amount of that cost is not, and cannot be, known at the time of the application for conditional leave, but in practice the Court estimates it and the appellant, as a condition of his grant of final leave, has to deposit the amount of the estimate. If the amount turns out to be over-estimated the balance is refunded to the appellant. If the amount turns out to be under-estimated the Appeal Court refuses to hear the appeal until the balance is paid, but it has never been suggested that the fact of under estimation makes the grant of condition or final leave bad.
If section 77(2) had not contemplated an estimate by the Court of a sufficient sum it would, in my opinion, have had the words “such costs” after the word “deposited” and would have Kwaku omitted the words “a sum of money sufficient to satisfy such Kumi and “costs”.
It is suggested in argument that the sufficiency of the amount under the section is to be settled, not at the time of the deposit, but afterwards. It is apparently suggested that the section means that a prospective appellant must gamble. If he deposits a sum in Court, accepted by the Court as sufficient to satisfy the costs, he can get his leave to appeal; and if the bill of costs, when filed and taxed, turns out to be not more than the amount of the deposit the leave to appeal is good–if not, it is bad. That I think is a plain reductio ad absurdum of the suggested construction of section 77(2).
There is another consideration which I think ought to weigh with this Court as a high Court of Appeal whose first care must be to do justice between the parties. A lower Court of justice has interpreted section 77(2) as in my opinion it ought to be interpreted. The appellant has relied upon that interpretation. If that interpretation is now held to be wrong he is thereby deprived by the lapse of time of an opportunity of having his appeal considered on its merits. That is a result which this Court ought to be astute to avoid; and in this case I am satisfied that this result can legitimately be avoided.
I am of opinion that this appeal should be allowed and the case remitted to the Court below to be heard and determined on the merits of the appeal from the Paramount Chief’s Tribunal, with costs to the appellant in this Court and the Court below.
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DEANE, C.J., GOLD COAST.
In this case, the plaintiffs’ appeal against a decision of the Provincial Commissioner of the Eastern Province dismissing an appeal from a judgment of the Tribunal of the Paramount Chief of Akwapim who has reversed a decision of the subordinate Tribunal of Aburi in favour of plaintiffs.
The facts which are relevant may be shortly stated.
On the 16th day of December, 1932 the Akwapim Tribunal found against the plaintiffs on appeal. On 11th February, 1933 Counsel for plaintiffs moved the Acting Commissioner of the Eastern Province for leave to appeal from the judgment of the Akwapini Tribunal on the ground that his clients had been refused leave to do so by the Tribunal. He exhibited no copy of an Order made by the Tribunal refusing such an application, although it was a condition precedent to the exercise of jurisdiction by the Commissioner under section 77(1) to grant leave that an application had been made to the Tribunal for leave and had been refused.
Plaintiffs further stated in their affidavit that up to the date of their application the defendant had not filed his bill for the costs awarded by the Tribunal and that they verily believed that he was delaying so that time might run against them to prevent Kami and the appeal, and at the hearing, to use the words of a note made by Otchere the Acting Commissioner, through their Counsel stated that “they Kwabena” were prepared to deposit in Court a sum of money estimated to be sufficient to cover any costs awarded by the Tribunal of the Paramount Chief”, whereupon the following order was made by the Commissioner:
“Court orders that the sum of £15 be deposited in this Court to cover the costs in the Tribunal below. When this amount has been deposited application may be renewed “
“Adjourned to 25th instant”
On 25th February Counsel for the plaintiffs applied for an extension of time within which to pay the £15.
The order then made by the Commissioner was:
“Leave granted. No date fixed in view of the fact that the application for leave to appeal cannot be considered until the costs have s been paid or deposited in this Court or in the Tribunal below”.
On 17th March, 1933 Counsel for plaintiffs again appeared and informed the Court that the order as to costs made on 11th February had now been complied with, and thereupon obtained a formal order for conditional leave to appeal, and on 19th April, on an affidavit that all the conditions imposed by the order of 17th March granting conditional leave had been fulfilled, he obtained a final order for leave to appeal from the judgment of the Akwapin Tribunal.
All these orders by the Commissioner, it is to be noted, were made on ex parte applications of the plaintiffs.
When the appeal came on for hearing on the 22nd July, 1933 before Mr. Judd, Acting Deputy Provincial Commissioner of the Eastern Province, Mr. Coussey, Counsel for defendant (the respondent), objected that the Court had no jurisdiction to hear the appeal since the conditions precedent to appeal laid down in section 77(1) and (2) of the Native Administration Ordinance, Cap. 111 had not been complied with before the order granting leave to appeal had been made by the Commissioner. He submitted that the order of 19th April granting leave to appeal was bad:-
1. Because at the date of the order the Tribunal had not refused leave to the plaintiffs to appeal, and it was only on their failure to do so that the Commissioner had power to grant leave — (Section 71(1) of Cap. 111).
2. Because at the date of the order granting leave to appeal the plaintiffs had neither paid the costs awarded by the Tribunal nor had they deposited either in the Tribunal or the Court a sim of money sufficient to satisfy such costs; that the payment of the costs or the deposit of an amount sufficient to cover them was a condition precedent to the granting of leave to appeal, and that the condition precedent not having been fulfilled the order was bad-(section 71(2) of Cap. 111).
The Provincial Commissioner, it appears, then proceeded to take evidence upon the facts on which these submissions were based and He came to the conclusion, as to the first objection, that the plaintiffs had in fact applied for leave to appeal to the Tribunal and had been refused on the ground that he believed that a verbal application had been made which the Tribunal had not recorded at the time of the delivery of judgment as deposed to in the affidavit of the plaintiffs although the Registrar of the Tribunal swore that there was no such application or refusal on record.
No argument has been addressed to us on this finding, and I do not propose here to say anything more about it than that such applications should be in writing. Had a formal application been on record in this case no conflict could have arisen on the point.
As to the second objection, however, the Provincial Commissioner was satisfied from the evidence of the Registrar that the costs awarded by the Tribunal when taxed had amounted to nearly £100, and that the sum of £15 was therefore not sufficient to cover them. One would have thought that he thereupon would have dismissed the appeal, the condition precedent to leave to appeal not having been fulfilled before it was granted as required by the sub-section. He did not do this however but tried to remedy what was really a fatal defect by adjourning the matter for one month, within which he ordered the applicants to deposit in Court an additional £85.
On the 27th November, 1933 when the matter came on again Mr. Coussey again took his legal objections and this time also pointed out to the Deputy Commissioner, Commander Saxton who 10w sat to hear the appeal that Mr. Judd’s order to deposit an additional £85 had not been complied with.
After hearing opposing Counsel for the plaintiffs the Deputy Commissioner reserved judgment, and on 9th December, 1933 decided that the appeal would not lie and dismissed it.
Against that order the plaintiffs have appealed to this Court. They contend in their grounds of appeal:
(1) that the order of 11th February, 1933 was right,
(2) that the order of 22nd July, 1833, was wrong, and
(3) that the judgment was wrong.
Now the meaning of section 77(1) and (2) of the Native Administration Ordinance has often been discussed in this Court, and it has been several times pointed out that the law is as commended for by Mr. Coussey that as to 77(2), which is the section particularly in question now, the payment of the costs or their deposit in the Tribunal or in the Court to which an appeal is being taken from a native tribunal is a preliminary requirement to the Anting of leave to appeal and that any such leave granted before is requirement has been complied with is illegal and the appeal must be dismissed. The Deputy Commissioner’s order, therefore, dismissing the appeal was in my opinion right on the face of it and since the order of the Commissioner of the 19th March, 1933 was illegal as being without jurisdiction.
The plaintiffs do not, in so many words, in their grounds of appeal say that this order was right but I will assume that by their first ground of appeal they intend to support it when they claim that the order of the Commissioner of the 11th February to deposit £15 in Court was right, since in fact they rely upon the fulfilment of the order of 11th February as giving to the Commissioner power to grant leave to appeal. It has been strongly pressed upon us by Counsel for plaintiffs that unless 77(2) of Cap. 111 is construed as conferring upon the Commissioner a power to order a deposit of a sum sufficient in his opinion to cover the costs awarded by the Tribunal the Ordinance is unworkable since there is no way of compelling a successful party to tax his bill of costs within six months, the period available for appealing, and an unsuccessful party may thus be deprived of his right of appeal by the failure or refusal of his opponent to tax his bill within the time, and that therefore the order of 11th February in the circumstances of the case, seeing that the bill of costs of the respondent had not been taxed nearly two months after the judgment, was justified.
Now as to this argument I must say first that I instinctively distrust an order which has the effect of conferring jurisdiction on the Court to do something prohibited, by the use of an expedient which the legislature has not provided, and next that even if the case were as bad as painted by the appellants I should hesitate greatly when the words of the statute are so clear and unambiguous, as they are in this case, to put a construction on them which in my opinion they cannot possibly bear in order to supply what I considered a lacuna in the law. It should, it seems to me, be left to the law-making body to remedy such a defect if any, no Court having, in my opinion, power to make law but only to declare the meaning of the law which has been made, which meaning and intention are to be gathered if possible from the actual words of the statute.
The meaning of the words a “sum of money sufficient to cover such costs” can only be a sum equal to or more than the costs, and there is nothing in the words of the statute, so far as I can see, which can confer upon the Commissioner power to guess at an amount, or to estimate it even, and on the deposit of such estimated costs, a lesser sum than the real amount, to exercise a jurisdiction which the law prohibits him from exercising except after payment of the costs; or deposit of an amount sufficient to cover costs actually incurred. Nor am I satisfied that any injustice has arisen or could arise from the failure of the successful party to the suit to tax his bill within six months of the judgment. The unsuccessful party is given six months within which to make his application for leave; in order that his application may be entertained: he must follow the course prescribed in law, but surely six months is ample time within which he may move the tribunal to call upon his opponent to tax his bill? Such an application could not reasonably be resisted and in the circumstances that the opponent is too ill to do anything, or is keeping out of the way, there is nothing, so far as I know, to prevent the tribunal itself assessing the costs which it has awarded. In this case the plaintiffs have never contended that they had made any efforts to get the costs taxed – all that they said was that they were not yet taxed nearly two months after the judgment.
They never said they had applied to the defendant to let them know the amount of the costs, or applied ex parte to the Tribunal to assess the costs, nor summoned the respondent before the Tribunal, to show cause why he should not forthwith tax his bill, they never even asked the Commissioner to call upon the respondent to tax his bill.
The circumstances in this case, in my opinion, do not point to any hardship on the appellants, the real hardship is to the respondent. For consider the facts – judgment was delivered on 19th December, 1932. On 11th February, 1933, when two months out of the six allowed for appeal had not yet expired, the appellants went to the Commissioner and made a statement that they were not allowed by the Tribunal to appeal, and, on the ground that the defendant had not taxed his costs, asked the Commissioner to fix the amount they should deposit into Court and to give them leave to appeal. Straightway without making any inquiry of any kind, and without hearing the defendant, who is left in complete ignorance of what is intended, the Commissioner orders a sum of £15 to be deposited in Court and intimated that on that being done the application will be heard. The matter was by no means urgent, two out of six months not having yet expired, and one would have thought that the Commissioner who, by the order he was making, must have known that he ran the risk of depriving the defendant of a valuable right which had been conferred on him by the law, viz., the right to have all his costs paid or deposited prior to appeal, would have required the plaintiffs to serve notice of the application on the defendant. Had be done so the defendant would have been able to tell him that the costs were likely to be far more than £15, which be apparently guessed as sufficient, and then the Commissioner would have been able to tell him to get his costs taxed at once, and if that had been done, it seems pretty clear that the defendant would never have been put to the trouble and expense of this appeal, since although the Commissioner fixed the very low sum of £15 to the 11th February, the plaintiffs were not able to pay in that sum within the two weeks allowed by the adjournment to put themselves in order, but had to apply for an extension of time to pay in the money, and it was not in fact until 17th March, 1933 that they were able to deposit the £15 while the balance ordered by Mr. Judd has not been paid in full up to now.
This, in my opinion, points clearly to the fact that the alleged verbal application to the Tribunal, if ever made, was not a bona fide application to appeal: the plaintiffs in fact knew that the costs awarded against them by the Tribunal would amount to a considerable sum, they had nothing like that sum in hand, and they knew that without it they could not get leave to appeal from the Tribunal they carefully avoided therefore making their application to appeal to the Tribunal formally, when the Tribunal might perhaps fix the amount they were to pay before getting leave, and applied to the Commissioner trusting that he would act on their ex parte statements and allow them to appeal without complying with the requirements of the law.
Their confidence was not misplaced, and without any regard to the elementary rule of justice audi alteram partem the Commissioner fixed a sum totally inadequate, careless that he was thereby doing an injustice to the holder of the Tribunal’s judgment. There was, in my opinion, no power in him to do any such thing. The order made by the Commissioner granting leave to appeal was illegal and this appeal should be dismissed with costs.
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YATES, J.
The sole point of this appeal is the interpretation of section 77 sub-section 2 of Cap. 111. The sub-section is 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 such costs”.
In my view this sub-section lays down three alternative conditions precedent to appeal and unless one of them is carried out the Court cannot grant leave to appeal. These conditions precedent are as follows:
(a) The appellant must pay the costs of the successful party to him, or
(b) deposit in the Tribunal a sum of money sufficient to satisfy such costs, or
(c) deposit in the Court to which the appeal is taken a sum of money sufficient to satisfy such costs.
None of these conditions were fulfilled at the time when conditional leave to appeal was granted. When conditional leave to appeal was applied for the costs in the Paramount Chief’s Tribunal had neither been ascertained nor taxed, and the Provincial Commissioner granted conditional leave to appeal, one of the conditions being that the appellant deposit in the Court £15 to satisfy the costs in the Paramount Chief’s Tribunal. As at this time no bill of costs had been presented by the successful party to the Tribunal, and no evidence was given before the Commissioner on the point, and I am at a loss to understand how he came to the conclusion that the sum of £15 was “sufficient to satisfy such and costs”? Unless he had such evidence before him I am of opinion he was wrong in granting even conditional leave to appeal.
What I think the learned Provincial Commissioner did was to follow the rule of the West African Court of Appeal which says that an appellant shall deposit a certain sum in the Court for the cost of making up and transmitting the record to the Court of Appeal, and at haphazard nominated a sum of £15 which, in his view, could be sufficient to satisfy the costs in the Paramount Chief’s Tribunal.
This view is I think borne out by the argument of learned Counsel for the appellant who asked the Court to read into the section words that are not there, to wit, after the word “sufficient” the words “in the opinion of the Court ” which could follow the rule of the West African Court of Appeal quoted above. I am of opinion the Court cannot do this, as the words of the section must be construed in their literal and ordinary meaning. The intention of the legislature was undoubtedly to protect successful litigants from frivolous appeals, and to ensure this, they enacted that no leave to appeal should be given until the successful parties costs were either paid or deposited. At the same time I feel very strongly they lost sight of the fact that the unsuccessful party might be very much aggrieved by the decision, and having either to pay or deposit the costs may put him in an impossible position if such bill of costs is not presented within six months. It is however my duty to administer and interpret the law as I find it, and I have most reluctantly come to the conclusion that this appeal must be dismissed.
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