Nil Kpakpo Muffat & Ors V. Nil Tetteh Kpeshie II & Anor (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Native Courts (Colony) Ordinance, 1944, section 52 (1) proviso—Native Courts (Colony) Procedure Regulations, 1945, Reg. 115 (1)—Time for appeal to Land Court—Appeal out of time.

The Native Court gave judgment against the defendants; they applied to that Court for review of its judgment; it was set aside, but later it was restored; and within one month of its being restored the defendants filed notice of appeal to the Land Court.

In the Land Court the plaintiffs objected on the ground that the above-cited Regulation allowed one month from judgment for filing notice of appeal whilst the notice in this case was filed much later.

The Land Court gave the defendants conditional leave to appeal on the view that the proviso to section 52 (1) of the above Ordinance gave the Court a discretion to hear and determine an appeal though not filed within that time limit. The plaintiffs appealed from the Land Court. For the defendants it was argued that they could not appeal from the Native Court until the judgment was restored.

Held

The said proviso only confers a discretion to hear and determine “ any appeal brought before the Court ”, but unless notice of appeal is filed within the time allowed by the regulation there is no appeal in existence in which discretion can be exercised; nor can the respondents now complain because the procedure they adopted by way of review in the Native Court turned out to be the wrong one.

(Editor’s Note : The said section and regulation are given infra in the W.A.C.A. judgment. In the judgment, infra, below the text of the regulation, the defendants are referred to as ” the appellants ”, viz. in the proceedings in the Land Court; towards the end of the judgment they are referred to as ” the respondent ”, viz. in the proceedings in the West African Court of Appeal.)

Appeal allowed: order of Land Court set aside.