Adabla V. Gbevlo Agamah & Ors (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Appeal from judgment of Paramount Chief’s Tribunal to Court of Provincial Commissioner without prior application to the Paramount Chief’s Tribunal for leave to appeal—Interpretation of proviso added to subsection (2) of section 77 of the Native Administration Ordinance (Cap. 111) by Ordinance No. 18 of 1985.

Held : The proceedings before the Court of the Provincial Commissioner amount to a nullity • and judgment of Paramount Chief’s Tribunal restored.

Held further (Petrides, C. J., dissenting) : the above-mentioned proviso qualifies sub-section (2) only.

There is no necessity to set out the facts of this case.

E. C. Quist for Appellants. Ofei Amere for Respondent. The following judgments were delivered :-

WEBBER, C. J., SIERRA. LEONE.

The High Native Tribunal of Ada gave judgment non-suiting the plaintiff and ordering each party to pay his own costs.

The plaintiff appealed from the judgment straight to the Supreme Court, Eastern Province. He should have applied to the same Tribunal for leave to appeal. No record can be traced in Ada Manche’s Tribunal of any proceedings by way of application for leave to appeal. The proceedings before the Appeal Court below therefore amount to a nullity.

Counsel for plaintiff-respondent has referred us to the proviso to sub-section (2) of section 77 of Cap. 111 and has submitted to us that, inasmuch as the words ” this section ” and not ” this subsection ” are used in the proviso, this proviso refers to both subsections of the section and asks that our discretion be exercised in his client’s favour.

The section referred to without the proviso reads as follows :-

” 1. A party desiring to appeal from a Paramount Chief’s Tribunal shall first obtain the leave of such Tribunal so to do ; provided that, if the said Tribunal shall have refused such leave, the Provincial Commissioner’s Court or a Magistrate’s Court constituted by the District Commissioner may nevertheless grant leave to appeal.

2. 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.”

The proviso was added to subsection (2) by Ordinance No.. 18 of 1985, section 18 of which reads as follows :-

” Sub-section (2) of section 77 of the Native Administration Ordinance shall be amended by adding at the end thereof the following proviso :

” Provided that notwithstanding anything in this section contained the West African Court of Appeal may in its discretion, for the purpose of doing substantial justice between the parties, hear and determine any appeal brought before it on such terms and conditions as it may deem just.”

The proviso qualifies sub-section (2) only. If it were intended to belong or refer to or affect the interpretation of both sub-sections the legislator would have said ” section 77, etc., shall be amended . . . etc., and not sub-section (2) of section 77.” I am clearly of opinion that the proviso refers to sub-section (2) only.

But even if the amendment could be construed to apply to sub-section (1) I do not think this is a case for exercising our discretion in favour of the respondents, for it is to be noted that the granting of leave to appeal by the Tribunal is discretionary and might or might not be granted. In my view an appeal should not be entertained when this essential step has been omitted. The result is that the decision in the Court below amounts to a nullity, as also all the proceedings subsequent to the decision of the native Tribunal.

In my opinion therefore the appeal should be allowed and the judgment of the High Native Tribunal of Ada restored.

KINGDON, C.J., NIGERIA. I concur.

PETRIDES, C.J., GOLD COAST.

I concur with the last two paragraphs of the judgment which has just been read, but regret I find myself unable to agree with the paragraph which precedes it.

As Maxwell on the Interpretation of Statutes states at pages 2 and 3 of the seventh edition :—

” The great fundamental principle is :

” ‘ In construing wills and, indeed, statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnancy or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but not farther ‘ (f).”

I see no reason why the ordinary sense of the word ” section ” should not be adhered to. In my opinion to so hold would not lead to any absurdity, repugnancy or inconsistency with the rest of the section such as to justify the ordinary sense of the word ” section ” being changed to ” sub-section.”