KINGDON, C.J, NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE. The plaintiff - respondent -respondent claimed against the defendant-appellant-appellant in the Tribunal of the Paramount Chief of Akyem Abuakwa a declaration of title to a piece of land, £25 damages for trespass, and accounts from 1939-41. He obtained judgment in his favour in the Tribunal on the 4th March, 1942. On the 12th March, 1942, the defendant-appellant-appellant applied to the Tribunal for leave to appeal, stating “The plaintiff has not “submitted his bill of costs for taxation. However I have “deposited the sum of £18 against the payment of costs” , There- upon the Tribunal granted him conditional leave to appeal. The defendant-appellant-appellant filed five grounds of appeal on the 4th May, 1942.
At the hearing of the appeal in the Provincial Commissioner’s Court, Counsel for the plaintiff-respondent-respondent questioned the jurisdiction of the Court to hear the appeal, and the Acting Deputy Provincial Commissioner who constituted the Court gave the following judgment:-
“I have considered carefully the arguments of learned Counsel on “the question of jurisdiction. I find myself bound by the decisions “Ohene Moore versus Akese Tayo and Kwaku Kuma and Utchere “Kwabena versus Amaka Otchere. Both of these judgments lave no “doubt in my mind that the £18 deposit cannot be treated as total “costs. It was proved to the Court that the total costs when finally “assessed amounted to £26 2s 0d. The appellant had ample “opportunity to utilise the facilities of the Court. He neglected to do “so and as such is himself responsible for the present position. “sustain the objection. Appeal dismissed with costs.” Against that judgment of the Provincial commissioner’s Court dismissing his appeal the defendant-appellant-appellant has appealed to this Court upon substantially the same five grounds as those upon which he appealed to the Provincial Commissioner’s Court and upon the following additional ground:-
“Having deposited into the Tribunal of the Omanhene of Akim “Abuakwa, the Tribunal from which he was appealing, an amount “which, in the absence of a Taxed Bill of Costs, the Tribunal considered “sufficient to cover the cost in the Tribunal, and therefore granted “leave to appeal, the appellant complied with the requirements of “section 82 (2) of the Native Administration Ordinance. The Acting “Provincial Commissioner was therefore wrong in upholding the “objection to the jurisdiction of his Court and dismissing the appeal”. As to this additional ground, we are of opinion that, in view of the decision of this Court in the case of Kumi and another v. Otchere (2 W.A.C.A. 213), the Acting Deputy Provincial Commissioner had no option but to hold, as he did, that he had no jurisdiction to hear the appeal. This ground of appeal could only succeed in this Court if we were prepared to uphold the view expressed in the dissenting judgment in that case and decide this case in the opposite sense to the Court’s decision in that case. This we are not prepared to do. this ground of appeal therefore fails.
But before we have dismissed the appeal and whilst it is still before us, Counsel for the defendant-appellant-appellant has applied to us to exercise in his favour the discretion conferred upon this Court by the proviso to sub-section (2) of section 82 of the Native Administration Ordinance (Cap. i6) (a discretion, be it noted which the Provincial Commissioner’s Court does not possess), and to hear and determine the appeal on its merits. The proviso reads as follows:- “Provided that notwithstanding anything in this section “contained the West African Court of Appeal may in its “discretion, for the purpose of doing substantial justice “between the parties, hear and determine any appeal brought “before it on such terms and conditions as it may deem “just.”
We have carefully considered whether that proviso gives to this Court the power to hear an appeal which has not been heard on its merits in the Provincial Commissioner’s Court owing to lack of jurisdiction in that Court to entertain the appeal to it where such lack of jurisdiction is due to the appellant’s failure to comply with section 82 of the Native Administration Ordinance.
In view of the directions given by the Privy Council in the case of Adabla v. Agama and others (5 W.A.C.A. p. 28 at p. 33) we are of opinion that the proviso in question does confer upon this Court the necessary powers, if, in its discretion, it considers it a proper case to exercise them.
That was a case in which this Court had held that the proceedings before the Court of the Provincial Commissioner were a nullity owing to non-compliance with the provisions of sub-section (1) of section 77 (now 82) of the Native Administration Ordinance. The Privy Council directed, in effect, that if, after further enquiry, it still appeared that those proceedings were a nullity, this Court should proceed to consider whether it would or would not exercise the discretion conferred upon it by the proviso to sub-section (2) (which they held applied equally to sub-section (1) as to flub-section (2) to hear the appeal on its merits.
Clearly their Lordships took the view that the proviso gave to this Court jurisdiction to hear the appeal even though the hearing in the Provincial Commissioner’s Court were a nullity. It is inconceivable that, if the Provincial Commissioner took the wrong view a to his jurisdiction and heard the case on its merits when he had no jurisdiction to do so, this Court should then have jurisdiction to hear the appeal under the proviso, but, if the Provincial
Commissioner took the right view as to his jurisdiction and refused to hear the appeal on its merits, then this Court should have no discretion under the proviso. We accordingly hold that under the proviso to subsection (2) of section 82 of Cap. 76 we have jurisdiction to hear this appeal on its merits if, in our discretion, we think fit to do so. As to whether this is or is not a proper case for the exercise of discretion in favour of the defendant-appellant-appellant, we take the view that he and the Tribunal itself were equally at fault in the appeal getting improperly before the Provincial Commissioner’s Court. The proper courses open to a would-be appellant when his successful opponent is slow to tax his costs are clearly laid down in the judgment of Deane, C.J. in Kumi and another v. Otchere (supra at p. 221). He may move, the Tribunal to call upon his opponent to tax his bill, or he may apply to the Tribunal to assess the costs. The defendant-appellant-appellant did neither of these things, instead he made a mistake similar to that made by the appellant in the Kumi- Otchere case; he deposited in the Tribunal a sum which ultimately proved insufficient to satisfy the costs. He probably acted of omitted to act through ignorance, but it was the duty of the Tribunal, having (as it should have had) the judgment of Sir George Deane in mind, to know that it could not grant conditional leave to appeal without strict compliance with the provisions of section 82 of the Native Administration Ordinance, and it should have re(used the application for conditional leave to appeal.
Inasmuch as we think it possible that the defendant-appellant- appellant was lulled into a sense of false security by the error of the Tribunal in granting him conditional leave to appeal, we have decided to exercise our discretion in his favour and to hear the appeal on its merits, i.e. upon grounds 2-6 inclusive of the “amended and additional grounds of appeal” filed in this Court.