Appeal from Native Tribunal to Magistrate's Court constituted by District Commissioner, from latter to Divisional Court, and from latter to Appeal Court-Preliminary Objection by Respondent that no appeal lay in first instance to Magistrate's Court.
Held: Appeal dismissed on such preliminary objection.
The history of the case is sufficiently set out in the judgment.
J. H. Coussey (with him A. O. Larbi) for Appellant. K. A. Bossman (with him W. B. Van Lare) for Respondent.
The following joint ruling was delivered:- KINGDON, C.J., NIGERIA, YATES AND STROTHER-STEWART,JJ.
In this- case the tribunal of the Omanhene of New Juaben gave judgment for the defendant. The plaintiff appealed to the Magistrate's Court constituted by the District Commissioner under section 79 of the Native Administration (Colony) Ordinance (Cap. 76). That Court allowed the appeal and ordered judgment to be for the plaintiff with costs. The defendant appealed under section 85 of that Ordinance to the Divisional Court which allowed the appeal, set aside the judgment of the Magistrate and restored that of the native tribunal. From that judgment the plaintiff now appeals to this Court under the provisions of section 4 of the West African Court of Appeal Ordinance (Cap. 5).
The respondent has taken the preliminary objection that the appeal does not lie because the term “Magistrate” in that section has the meaning given to it in the Courts Ordinance which does not include a Magistrate constituting a Magistrate's Court which could not be constituted by a District Magistrate.
A similar preliminary objection was taken yesterday before this Court (constituted in the same manner as it is to-day) in the case of Aliedu v. Nuamah, and was overruled, but the grounds now put forward were not suggested to the Court then and were not argued. If they had been, the decision would have been different because we are now satisfied that we must uphold the objection.
The definition of “Magistrate” given both in the Courts Ordinance (Cap. 4) and in the Interpretation Ordinance (Cap.1) is as follows:- “Magistrate includes District Magistrate, a “Provincial Commissioner, or District Commissioner “when performing any of the functions of a District. “Magistrate and any other officer when performing “any of the magisterial functions of such a Commis- “sioner; and the expression ‘Magistrate's Court’ or Stewart; “‘Court of a Magistrate’ or ‘Court of the “Magistrate' shall be interpreted accordingly.”
It is to be observed from this that the definition does not include a District Commissioner when constituting a Court which could not be constituted by a District Magistrate. The “Magistrate’s Court” which functions under sections 79 and 85 of the Native Administration (Colony) Ordinance (Cap 76) is such a Court, i.e., one which cannot be constituted by a District Magistrate. Therefore it is not a “Magistrate's Court” within the meaning of the definition, and the District Commissioner constituting it is not a Magistrate within the meaning of the definition. As the term “Magistrate” as used in section 4 of the West African Court of Appeal Ordinance means only a Magistrate within the meaning of the definition, it follows that that section does not confer a right of appeal when the appeal to the Divisional Court has been from a Magistrate's Court constituted by a District Commissioner not performing any of the functions of a District Magistrate and therefore not a Magistrate within the meaning of the definition.
The appeal accordingly does not lie and is dismissed with costs assessed at £20 17s. 0d.