SRULE AKESE V. FATUMO

WEBBER, C.J., SIERRA LEONE.

This case came before the Chief Judge of the High Court at Calabar under an Order of Transfer signed by the Resident of Calabar Province on 8th May, 1935, and amended by him on the 11 7th June, 1935.

A claim in the Native Court Calabar was filed by one Shule Akese against Fatumo for refund of £13 11s. 6d. It was heard and determined by that Court on 14th February, 1935, and judgment was entered for the plaintiff for £11 1s. 6d. and costs. The case was re-opened for further evidence and the former judgment was confirmed. This case was reviewed by the District Officer and judgment was entered for the plaintiff on 9th April, 1935, for £1 4s. 0d. and the clothes given in Mosque, to be paid in two weeks from date.

On 8th May, the Resident made an Order of Transfer under section 25 (1) (c) of the Native Courts Ordinance transferring the suit to the Court of the Magistrate, Calabar Magisterial Area and this Order was amended by him on the 7th June, 1935, by which he transferred the case to the High Court. Being uncertain as to the legality and effect of this Order as amended by the Resident, the Chief Judge of the High Court submits the following questions for the decision of the West African Court of Appeal:-- (1) Is the said Order as amended legal and valid? (2) If so what is its effect (if any)?

As to the first question the answer must depend upon the construction to be place upon the relevant sections the terms of which it is convenient now to set out in full.

Section 25 (1) © gives the Resident power to;- “order the transfer of any cause or matter either before trial or at any stage of the proceedings, whether before or after sentence is passed or judgment is given, to another Native Court or to a Magistrate’s Court or to the High Court.”

Section 25 (4)reads as follow:- “(4) An order made or sentence passed under sub-section (1) may be amended by the Resident or District Officer within one month of his making the order or passing the sentence on recording his reasons for such amendment in writing in the Court Judgment Book”.

There can be no doubt as to the power of a Resident or District Officer to amend an Order of Transfer and the answer to the first question is that the said Order as amended is legal and valid.

As to the second question it seems to me that the whole sub-section 25 (1) © is a contradiction in terms. The power to transfer a cause “at any stage of the proceedings” applies so long as anything remains to be done to complete the judgment.

Cp. The Duke of Buccleuch 1892 p. 201 and where the proceedings are complete the power is gone –Re Palmer v. Hosken 1898 1 Q.B. 131. To transfer a cause after judgment given as in this has no effect as no rehearing can be implied, the proceedings having terminated.

The answer to the second question is that such an order as in this case has no effect.

YATES, Acting C.J, GOLD COAST.

I concur.

KINGDON, C.J, NIGERIA.

I concur.