Verity, Ag. P. In this case we heard in the first instance an argument on the first ground of appeal which alleged that the Supreme Court had no jurisdiction to entertain the suit in that an order of transfer by a D.O. under section 28 (1) (c) of the Native Courts Ordinance, Cap. 142, was of no effect. The position arose in these circumstances. A suit was instituted in a Native Court and there heard and determined. An appeal was then made to a Magistrate's Court. This appeal was heard and by his order the Magistrate set aside the judgment of the Native Court, and exercising his power under section 41 (b) of Chapter 142, ordered that the case be re-heard before a Native Court. The D.O. then transferred the suit for hearing in the Supreme Court. It is submitted on behalf of the appellant that the D.O. had no power to make such an order and that as the Supreme Court is precluded from exercising jurisdiction in a case of that kind, save by order of transfer, it had no jurisdiction to entertain the suit. On behalf of the respondent it is urged that the D.O. has unfettered power to transfer to the Supreme Court any cause or matter before a Native Court subject only to one limitation which is contained in the proviso to sub-section (1) of the section 28 of Chapter 142. This provision is to the effect that where a matter has been transferred by the Supreme Court or Magistrate's Court to a Native Court, then the D.O. shall have no power to transfer the matter to the Supreme Court, or to the same or any other Magistrate's Court.
It is submitted on behalf of the respondent that this is the sole limitation on the power of the D.O. to transfer from the Native Court to the Supreme Court. There may appear to be a good deal of force in this argument, but we have to consider in the first place what is the effect of section 40 (1) of the Ordinance which empowers the Magistrate's Court exercising appellate jurisdiction either to re-hear the case or without re-hearing to make any order that the Court of first instance might have made, or to order that the case be re-heard before the Court of first instance or before any other Native Court or before any Magistrate's Court. Now, this power is not conferred alone upon a Magistrate's Court. It is conferred also upon the Supreme Court, a district officer, a resident or the Governor. In the case of the Governor he may order a re-hearing before the Supreme Court. If the argument of the respondent is to be accepted it would imply that were an appeal heard by a resident or the Supreme Court or the Governor and were it to be ordered that the case be re-heard before a Native Court, a D.O. might nevertheless, exercise his own discretion and transfer the case to some other Court. We are unable to feel that it was the intention of the legislature as expressed in section 40 of this Ordinance that any such powers are conferred upon the D.O. for setting aside the order of a Court exercising appellate jurisdiction. It is to us unconceivable that if such a case came before the Governor, who exercised his powers under this section, section 28 intended that a D.O. might, in effect, set aside the Governor's order and transfer the case
Before it can interpret an enactment the Court must consider whether or not any particular interpretation will result in absurdity and unless the words are so clear that this plainly must have been the intention of the legislature the Court will give it no such interpretation.
In this case, therefore, I am of the opinion that the D.O. had no power under section 28 of the Ordinance to make an order transferring to the Supreme Court a case which had been ordered by the Magistrate's Court to be tried by a Native Court. That being so, the Supreme Court has no jurisdiction to entertain this suit and the appeal must be allowed and the judgment in Court below be set aside.
In view of the fact that this point was not raised in the Court below there will be no orders as to costs here or in that Court.
Appeal allowed.