NII KPAKPO MUFFAT V. NII TETTEH KPESHIE II

Foster-Sutton, P. The facts of this case are fully set out in the learned Chief justice’s Order, the subject of this appeal, and no good purpose would, therefore, be served by a recapitulation of them here.

The question we are asked to determine is whether the Land Court, in its appellate jurisdiction, has power to grant an application for conditional leave to appeal by virtue of the discretion vested in it by the proviso to section 52 (1) of the Native Courts (Colony) Ordinance, 1944, when notice of appeal has not been filed within one month of the date of the decision appealed against as required by Regulation 115 (1) of the Native Courts (Colony) Procedure Regulations. 1945.

For convenience of reference the two provisions read as follows:- “52 (1) All appeals from Native Courts shall be prosecuted in accordance with such Regulations as may from time to time be made hereunder: “Provided that notwithstanding anything in this Ordinance or in Regulations made hereunder a Native Appeal Court, or a Magistrate’s Court or a Land Court sitting in its appellate capacity, may in its discretion, for the purpose of doing substantial justice between the parties, hear and determine any appeal brought before it on any terms which it thinks just.” “115 (1) Any person wishing to appeal from an order or decision of a Native Court shall file in the Native Court and lodge in the Appeal Court a Notice of Intention to Appeal and such Notices shall be filed and lodged within one month of the date of the order or decision appealed against.”

The judgment which the appellants sought to appeal against was delivered on the 11th September, 1948, and the Notice of Appeal was filed on the 14th June, 1949.

The learned Chief Justice held that the proviso referred to confers a discretion upon the Land Court to hear and determine an appeal and for that purpose to grant conditional leave to appeal notwithstanding that Notice of Appeal has not been filed within the time limit provided by the above-mentioned regulation, and that justice in this case required the discretion to be exercised in favour of the appellant.

With respect to the learned Chief Justice I disagree with that ruling. The proviso in question only confers a discretion to hear and determine “any appeal brought before the Court”, and, in my view, Regulation 115 (1) of the regulations referred to makes the filing of a Notice of Appeal within the period stipulated therein an indispensable condition to the existence of an appeal. If that condition has not been complied with, as was the case here, I am of the opinion that the Court's jurisdiction to exercise its discretion under the proviso to section 52 (1), does not arise.

On behalf of the respondent it was also argued that the judgment of the Native Court having been set aside within one month of its delivery, the respondent could not appeal until that judgment was restored and that he had filed his appeal within one month of its restoration. I am unable to agree with this contention: the respondent chose to apply to the Native Court to review its judgment, under the provisions of section 51 of the Native Courts (Colony) Ordinance, 1944, and he cannot now complain because the procedure he adopted turned out to be the wrong one.

For the reasons I have given I would set aside the Order made in the Court below and allow this appeal with costs fixed at £30 8s. 0d.

Coussey, J.A. I concur, Korsah, I, I concur.

Appeal allowed: order of Land Court set aside.