PETRIDES, C.J., GOLD COAST, GRAHAM PAUL, C.J. SIERRA LEONE, FRANCIS, J., NIGERIA. In this case stated the learned Assistant Judge has discussed at some length various matters but has not specifically stated a definite question or definite questions of law on which the opinion of this Court is desired and required by the Court below for the decision of the case before it.
It would appear however from the third paragraph of the case stated that the actual question of law arising before the Court below is “whether under the provisions of section 33 of the Native “Courts Ordinance, 1934, and order 43 rule 13 of the Protectorate “Courts Rules 1934, the appellant could be heard respecting” his application in the High Court for leave to appeal out of time to that Court.- Section 33 of the Native Court Ordinance, 1933, is in the following terms: -
“Leave to appeal out of time to any court (including the Governor. “the Resident and the District Officer, sitting in the exercise of their “appellate jurisdiction under this Ordinance) may except in the case “of capital offences, be given by such court upon such terms as to such “court shall seem just.”
The terms of that section are quite definite and by them the Legislature expressly gave to the various Appellate Courts specified a discretion to grant leave to appeal out of time upon such terms as to the particular Court might seem just. This section clearly applies to appeals to the High Court from the Magistrate’s Court.-
This section being an express enactment by the Legislature cannot be repealed or amended except by the Legislature.-
It follows therefore that Rule 13 of Order 43 of the Protectorate Courts Rules in so far as it professes to take away the unfettered discretion of the High Court as to granting leave to appeal out of time is ultra vires and of no legal effect not for the reasons set out by the learned Assistant Judge but because section 33 of the Native Courts Ordinance cannot be modified in any manner by Rule made under section 48 of the Protectorate Courts Ordinance (No. 45 of 1933).
The answer to the question is therefore that the appellant applying in the High Court for leave to appeal out of time must be heard by the High Court respecting the application and the High Court must exercise the discretion given under section 33 of the Native Courts Ordinance, refusing leave to appeal out of time or granting it upon such terms as to the Court may seem just.-
It may perhaps be usefully added for the guidance of these various appellate tribunals that this discretion must be judicially exercised and in the exercise of that judicial discretion in favour of an appellant the Appellate Court should be satisfied that there is some substance in the appeal and that there is a reasonable excuse for the delay which in the particular case has made it necessary to apply for leave to appeal out of time.
No order as to costs.