DEANE, C.J. THE GOLD COAST COLONY.
This is a motion that the Court should review its order made on 5th May, 1932, dismissing an appeal by the appellant from an order of Bannerman Acting Judge.
It appears that a suit having been instituted in the Native Tribunal of Cape Coast whereby the plaintiff claimed £100 damages for slander against the defendant, that Tribunal gave a decision awarding to the plaintiff the sum of £4 Is. Damages and costs which were subsequently assessed at £74 18s. The appellant thereupon got conditional leave to appeal from the judgment of the Tribunal, but for some reason best known to himself-probably because he had not fulfilled the condition precedent imposed by section 77 (2) of the Native Administration Ordinance requiring the payment of costs as a preliminary to appeal, he later applied to the District Commissioner to grant him conditional leave to appeal.
This the Commissioner refused to do on the ground that section 74 (1) of the Native Administration Ordinance Cap. III specifically limited appeals in civil cases other than land cases from a Paramount Chief’s Tribunal (as this was) to a District Commissioner to cases in which the subject matter of the appeal was of the value of £5 or upwards exclusive of costs. This decision of the District Commissioner was upheld by the learned Judge in the lower Court, and on 5th May this Court, as above stated, made an order dismissing the defendant's appeal from the latter’s decision. Now this Court is asked to review its decision on the ground that after the Divisional Court Judge delivered his judgment on 2nd October, 1931 to wit on 12th October, 1931, an Ordinance No. 23 of 1931 was passed amending section 74 (1) of the Native Administration Ordinance so as to give to any person dissatisfied with the decision of a Paramount Chief’s Tribunal a right to appeal to a District Commissioner’s Court in any civil cause or matter (save those otherwise provided for) in which the subject matter in dispute is of the value of £5 or upwards, and also as to costs when the amount of such costs ordered to be paid exceeds £5.
Now it must be obvious that inasmuch as the learned Judge J in the Divisional Court delivered his judgment on the 2nd October, 1931, that is to say ten days before the now Ordinance came into force, his Judgment was in view of the law then existing correct, and an appeal from it on the ground that it was wrong when I delivered was bound to fail.Counsel, however, now asks us to allow his appeal on the ground that the law having been amended since the date of the judgment this Court is, he submits, in a position as a Court of rehearing invested with the same powers as the Court below to make an order nunc pro tunc allowing him the right to appeal.
The first observation that must be made is that it seems to be the fact that it was owing to the hardship worked to the defendant- appellant by the then state of the law that amending legislation was passed. One would therefore naturally expect that if the Legislature meant that the defendant appellant should have the benefit of the amending legislation it would have said so explicitly instead of having that question to be governed by the Interpretation Ordinance Cap. 74 section 6 sub-section 2 (b) and ©, which enacts that “when an ordinance repeals an ordinance, then unless the contrary intention’ appears the repeal shall not (b) affect the previous operation of any ordinance so repealed, or anything duly done or suffered under any ordinance so repealed; or © affect any right privilege obligation or liability acquired accrued or incurred under any ordinance so repealed. But there is in the amending ordinance nothing to show that the legislature meant the operation of the new law to be retrospective, or not in conformity with the rule laid down, and in the absence of words showing a contrary intention it is clear that this is the rule according to which this Court is bound to interpret the law, and that it has no power to confer a right on the defendant-appellant which he did not have before, thereby specifically derogating from a vested interest (his judgment) which the plaintiff-respondent had obtained under the law previously existing and which is expressly guarded by the words of the Interpretation Ordinance. Appellant’s counsel, however, refers to Quilter v. Mapleson 9 Q.B.D. 672, and to the local case of Acka v. Kutuah 2 Renner’s Reports 617, as showing that when legislation has altered the law since the date of judgment an Appeal Court can give effect to the new law in circumstances similar to these. If the case of Quilter v. MaPleson is examined, however, it will be found that it does not support any such proposition. In that case a landlord had sued to re-enter for breach of a covenant contained in a lease and had obtained judgment on 4th July, 1881; on the 4th August, 1881 the tenant appealed.
A stay of proceedings was then granted, and continued so that the landlord never obtained possession. On 1st January, 1882, the new Conveyancing Act came into force which entitled a tenant in possession to relief against forfeiture in certain circumstances.
It was held by the Court that the new act was retrospective in operation and that the tenant still being in possession, he could claim relief under it.
In other words the “contrary intention” spoken of in our Interpretation Ordinance appeared in the 1882 Act, and the further holding that assuming the judgment of the Court below to have been correct according to the law as it then stood, the Court of Appeal could grant to the tenant the relief to which he was entitled according to the law as it stood at the hearing of the appeal, since the general orders provide that appeals shall be by way of rehearing, must be read in the light of the fact that the tenant was still in possession and that the new act gave certain rights to persons in possession.
The case of Acka v. Kutuah (ut supra) is an authority decided in accordance with the general principles of law that alterations in procedure are retrospective in effect (vide Maxwell on interpretation of Statutes page 393). The reason of course is that such alterations do not, in the words of the Interpretation Ordinance, affect rights, privileges, obligations or liabilities acquired, accrued or incurred under any ordinance which is so repealed. It is argued by counsel for the appellant that the amending ordinance in this case is merely a procedure ordinance and should therefore be construed retrospectively. On principle the argument is unsound, since a procedure ordinance deals only with the mode in which a right of action already existing shall be asserted, and creates no new right of action. If this amending ordinance is examined it will be seen that while preserving intact the old right of appeal where the subject matter of the dispute is of the value of £5 or upwards exclusive of costs, it creates an entirely new right to appeal in cases in which the costs awarded exceed the sum of £5; and it is only under this latter clause that any appeal could lie in this case. The point, however, that a right of appeal is not for this purpose a mere matter of procedure has already been decided in the case of the Colonial Sugar Refining Company Ltd. v. Irving (1905) A.C. 369, where it was laid down that although the right of appeal from the Supreme Court of Queensland to His Majesty in Council given by the Order in Council of 30th June, 1860, had been taken away by the Australian Commonwealth judiciary Act 1903, and the only appeal therefore lay to the High Court of Australia, yet the Act was not retrospective and a right of appeal to the King in Council in a suit pending when the Act was passed, and decided by the Supreme Court afterwards, was not taken away. In that case counsel for the respondent in moving a petition to dismiss the appeal had argued that the alteration made by the Commonwealth judiciary Act was one of procedure which did not affect private rights, and therefore took effect with reference to pending actions, while counsel for appellant argued that the Act could not defeat a right already in existence when it was passed. Lord Macnaghten in delivering the judgment of the Privy Council stated: “As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be matter of procedure only the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that in accordance with a long line authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The judiciary Act is not retrospective by express enactment or by necessary intendment: and therefore the only question is was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure. It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure.” The case quoted is, of course, the converse of this case, but to adopt its reasoning in this case I would say that to deprive one suitor of his rights under a judgment and to give to another an entirely new right of appeal is a very different thing from regulating procedure.
The motion for review must be refused with costs. KINGDON, C.J. NIGERIA.
I concur. MACQUARRIE, J. I concur.