Agboyibo Agbankor V. Kpodo Kwaku Mensah (1949)
LawGlobal Hub Judgment Report – West African Court of Appeal
Case stated—Interpretation of Gold Coast Native Courts (Colony) Ordinance,1944, sections 7 (1) and 23.
Section 7 of the Gold Coast Native Courts (Colony) Ordinance must be interpreted with its background of section 74 of the Courts Ordinance.
Neither section 7 (1) nor section 23 of the Native Courts (Colony) Ordinance affects the operation of native customary law in matters of procedure and practice.
Case stated by the Supreme Court of the Gold Coast.
Akufo Addo for Appellant (defendant below).
Bossman for Respondent (plaintiff below).
The following joint judgment was delivered:
This is a case stated under section 6 of the W.A.C.A. Ordinance (Cap. 5).
Where it is sought to obtain the opinion of a higher Court upon a short point of law arising out of a given set of facts found by the Court below an appeal-by way of case stated is convenient. But where, as in the present case, the point to be determined is one which may be considered from more than one angle, this procedure is not altogether satisfactory, for this Court is confined to giving an opinion on the precise point of law propounded by the Court below, and no other.
The questions for consideration of the Court in the instant case are :-
- Whether the interpretation to be placed on section 7 (1) and section 23 of the Native Courts (Colony) Ordinance, 1944, is that the Ordinance has taken away from the Native Courts the right to appoint in accordance with Native Custom some of its own members sitting on a case to view lands in dispute and to report by way of giving evidence before such Native Court as to what they saw on their inspection.
- Whether the procedure adopted by the Native Court in this case is an
infringement of the provisions of section 7 (1) of the Native Courts
(Colony) Ordinance and therefore renders the proceedings a nullity.
It has long been the policy in the Colonial Empire to give effect to native law and custom provided it is not repugnant to natural justice, equity and good conscience. This principle is implemented in section 74 of the Courts Ordinance (Cap. 4) and is re-stated in section 23 of the Native Courts (Colony) Ordinance, 1944 (22 of 1944) which reads as follows;—
“Subject to the provisions of this Ordinance and to such Regulations as may be made under section 70, the procedure and practice of Native Courts shall be regulated in accordance with native customary law.”
It it with this background that section 7 of the Ordinance has to be interpreted, for in construing a statute it must be read as a whole, and no provision should be interpreted so as to alter the general scheme of the Ordinance, if a meaning can be given to it consistent with the intention of preserving it. Moreover, there is a presumption that the legislature does not intend to make any substantial alteration in the law beyond the immediate scope and object of an amending provision. Quite apart from this, however, section 23 makes it abundantly clear that the legislature, when enacting Ordinance 22 of 1944 wished to preserve native customary procedure as far as may be in Native Courts.
We should, therefore, ascertain in the first place the immediate object of section 7 (1) and in the light of that see whether there is anything in it which directly or by necessary implication abrogates the procedure heretofore in force in Native Courts.
Now the object of section 7 (1) is two-fold, viz., to place a limit upon the number of members sitting on any one case and to avoid a stalemate through the members of the Court being evenly divided in opinion. These objects are attained by providing that the Court shall consist of three or five members. There is nothing in the section to indicate that any further change in the law was intended.
The answer to the questions in the Case stated therefore is that neither section 7 (1) nor section 23 of the Ordinance affects the operation of native customary law in matters of procedure and practice unless and until Regulations are made under section 70 which have the effect of altering it.
Counsel for the defendant-appellant raised the point that the procedure described in paragraph (a) of the Case stated is repugnant to natural justice, but in view of the form in which the questions have been framed, this does not come within our terms of reference.
