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JUDGMENT
The following judgments were delivered: WEBBER, C.J., SIERRA LEONE.
The High Native Tribunal of Ada gave judgment non-suiting the plaintiff and ordering each party to pay his own costs.
The plaintiff appealed from the judgment straight to the Supreme Court, Eastern Province. He should have applied to the same Tribunal for leave to appeal. No record can be traced in Ada Manche’s Tribunal of any proceedings by way of application for leave to appeal. The proceedings before the Appeal Court below therefore amount to a nullity.
Counsel for plaintiff-respondent has referred us to the proviso to sub-section (2) of section 77 of Cap. 111 and has submitted to us that, inasmuch as the words “this section” and not “this sub-section” are used in the proviso, this proviso refers to both subsections of the section and asks that our discretion be exercised in his client’s favour.
The section referred to without the proviso reads as follows:-
“1. A party desiring to appeal from a Paramount Chief’s Tribunal shall first obtain the leave of such Tribunal so to do: provided that, if the said Tribunal shall have refused such leave, the Provincial Commissioner’s Court or a Magistrate’s Court constituted by the District Commissioner of the district in which the person’s appeal to be heard may grant leave to appeal.
“2. Leave to appeal from a Paramount Chief’s Tribunal shall not be granted unless and until the appellant shall either have paid the costs in such Tribunal or shall have deposited therein or in the court to which the appeal is being taken a sum of money sufficient to satisfy such costs; and such Court shall not grant a stay of execution with respect to the said costs.”
The proviso was added to subsection (2) by Ordinance No. .. 18 of 1935, section 13 of which reads as follows :-
"- Sub-section (2) of section 77 of the Native Administration Ordinance shall be amended by adding at the end thereof the following proviso:
".. 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."
The proviso qualifies sub-section (2) only. If it were intended to belong or refer to or affect the interpretation of both sub-sections the legislator would have said "section