JELR 81221 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1946-49 12 WACA 516-518
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native courts ordinance
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original jurisdiction
african court of appeal ordinance
appellate jurisdiction
district officer
magistrate’s court
special leave
west african court of appeal
decisions of the supreme court
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native courts of first instance
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gold coast
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original jurisdiction of the magistrate
preliminary objections
present case
present circumstances
such further applications
west african court of appeal ordinance

Verity, C.J. Upon this appeal coming on for hearing Counsel for the respondents took three preliminary objections, firstly, that the appeal is out of time, secondly that, if an appeal lies, it does not do so as of right but only by special leave which has not been obtained, and thirdly, that no appeal lies. As to the first point it is clear from the record that the appeal is one day out of time, the grounds of appeal not having been filed within seven days, but on the eighth day, after the order granting Final Leave to appeal. Were this all I should be disposed following the usual practice of this Court, to give the appellant an opportunity of seeking an extension of time from the Courts below, under rules 14 and 15 of the Rules of this Court.

In regard to the second objection it is again apparent from the record that special leave to appeal, as required by section 4 of the West African Court of Appeal Ordinance, was neither sought nor obtained. Here again it might have been possible for the appellant to make such further applications to the Court below as would have brought the appeal within the section.

The third objection, however, goes more deeply to the root of the matter in that, if it is to be sustained, there can be no appeal in this case under any conditions.

The case was originally brought in a Native Court; an appeal was made to the District Officer and thence to the Resident, who, under section 40 of the Native Courts Ordinance, ordered a rehearing in the Magistrate’s Court, Enugu. After this rehearing there was a further appeal to the High Court, Onitsha. That Court, in the course of the proceedings, stated a case for the opinion of the Court of Appeal, which held, following Horsfall v. Amachree (1) that, when rehearing a suit under an order made pursuant to section 40 of the Native Courts Ordinance, the Magistrate is not exercising original jurisdiction. The High Court by a consent order set aside the judgment of the Magistrate, Enugu, and ordered a further rehearing by the Magistrate, Aba, from whose decision appeal was made to the Supreme Court. It is against the judgment of the Supreme Court dismissing that appeal that the appellant now seeks to appeal to this Court.

It is well-established that there is no right of appeal save such as may be created by statute, and it is incumbent upon the would-be appellant to show that he has such a statutory right.

Counsel for the appellant cited section 4 of the West African Court of Appeal Ordinance in support of the right he claims, but it has been decided by this Court in a case under the analogous legislation in the Gold Coast, that this section does not confer any right and does no more than regulate any such right conferred by some other Ordinance.

It would be as well also to observe that no right of appeal to this Court in the present circumstances is conferred by section 12 of the Magistrates’ Courts (Appeals) Ordinance, which confers a right of appeal in cases only within the original jurisdiction of the Magistrates’ Courts.

Turning to the Native Courts’ Ordinance, the sole right of appeal to this Court is conferred by section 34, which provides that;-

“An appeal shall lie to the West African Court of Appeal from the Order or decision of the Supreme Court given on appeal from a Native Court of first instance.”

In my view, this section is to be construed as confining the right which it confers strictly to the particular class of case prescribed therein, that is to say, decisions of the Supreme Court on appeal from Native Courts of first instance, and it cannot be extended so as to bring within its provisions any appeal from a decision of the Supreme Court on an appeal from a Magistrate’s Court, even though the case may, in the first instance, have been commenced in a Native Court.

These are rules 14 and 15 of the West African Court of Appeal Rules, 1937 (now repealed). Those rules provided for Conditional and Final leave to appeal, but this procedure has now been abolished.

It is, moreover, submitted on behalf of the respondent that by section 36 of the Native Courts Ordinance it is expressly enacted that the decision of the Supreme Court in such cases as the present shall be final.

This section provides that:- “The order or decision of ...the Supreme Court under section 30 (3) … shall be final and conclusive.”

Section 30 (3) provides that:- “Any persons aggrieved by any order or decision of a Magistrate’s Court, whether made or given upon an appeal from a Native Court of first instance or upon appeal from a Native Court of appeal, may within thirty days from the date of such order or decision appeal therefrom to the Supreme Court.”

It is submitted that the present case falls within this latter sub-section and that by virtue of section 36 the decision of the. Supreme Court is final.

On behalf of the appellant, however, Counsel submitted that the Magistrate’s decision in this case is not a decision upon appeal from a Native Court of first instance, and the question to be determined is whether it is or is not such a decision.

This Court has held, both in the present proceedings and in Horsfall v. Amachr” (1), that the Magistrate does not exercise original jurisdiction when rehearing a case under an Order made under section 36 of the Native Courts Ordinance, and it would appear to follow that he does, therefore, exercise appellate jurisdiction, for I am unable to conceive any other or intermediate form of jurisdiction. The case came before the Resident on appeal and it was in exercise of his appellate jurisdiction that he ordered rehearing; and similarly with the further order for rehearing made by the Supreme Court, also in exercise of its appellate jurisdiction. Had either a Resident or the Supreme Court decided to rehear such a case, by virtue of section 40 (1) (a), there can be no doubt that it would be in exercise of appellate jurisdiction and I think that in deciding that a Magistrate, in re- hearing the case under section 40 (1) (b) is not exercising original jurisdiction, this Court, although the reasons for its decision do not appear in the reports, was of the opinion that the Magistrate is, in effect, exercising jurisdiction in appeal proceedings. If this be so, as is my view, then a decision given by the Magistrate in such proceedings is a decision upon appeal and falls within section 30 (3) of the Ordinance.

In my opinion, therefore, no appeal lies to this Court in the present proceedings, which do not fall within the provisions of any Ordinance conferring a right of appeal but which do, on the other hand, fall within section 36 of the :Native Courts Ordinance; 1933, which provides that in such cases as the present, the decision of the Supreme Court shall be final and conclusive.

I think that the appeal should be struck out with costs fixed at £22 1s. 0d.

Lucie-Smith, C.J. I concur. Lewey, J.A. I concur.

Appeal struck out.