Lord Atkin:-

This is an appeal from the judgment of the West African Court of appeal, Gold Coast Session, reversing a judgment of the Provincial Commissioner of the Western Province who had reversed a judgment of the Native Tribunal of the Omanhene of Beyin, and the question in the case is whether or not the Provincial Commissioner had jurisdiction to entertain at all the appeal from the Native Tribunal. The action was brought by the plaintiff for damages for trespass on his land and for unlawfully arresting the plaintiff's men. The Native Tribunal had given judgment for the defendant. Now the rules regulating appeals from the Paramount Chief's Tribunal (which this was) are laid down by the Native Administration Ordinance, which is now Ch 3 of the laws of the Gold Coast Colony, 1928. By S.77, sub-S.(1)

"A party desiring to appeal from a Paramount Chief's Tribunal shall first obtain the leave of such Tribunal to do so; provided that, if the said Tribunal shall have refused such leave, the Provincial Commissioner's Court or the District Commissioner's Court may nevertheless grant leave to appeal."

Then by sub-S. (2) it is provided:

"Leave to appeal from the 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."

An application was made to the Native Tribunal Court for leave to appeal and the Native Tribunal granted conditional leave to appeal on the following conditions. The respondent was

"to deposit £10 into Tribunal against cost of making up and transmission of appeal record; (2) to enter into bond in sum of £21 2s. 6d. in two sureties of £25 each to be justified against costs in appeal Court; (8) to give notice of the appeal to all parties affected by the appeal; (4) conditions to be fulfilled within one month from date."

On an affidavit by respondent that those conditions had been fulfilled final leave to appeal was eventually given. Two bonds were entered into. One was a bond in the sum of £21 2s, 6d. and the other was in the sum of £50, each given by two sureties and each was conditional for the payment of costs in the appeal tribunal. So that in fact no provision was made for the costs in the first Court at all. Now the unfortunate thing is that that order so made by the Court of first instance did not comply with the provisions of the statute which provides that

"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."

To begin with, a bond is not payment of money, and in the second place, if it had been a payment of money, these particular bonds are not conditioned, for payment of the costs in the Native Tribunal but were conditioned for payment of costs in the appellate Court, though the amount of money, £21 2s. 6d., appears to be the amount of taxed costs in the Native Tribunal Court. It is sufficient to say that the statutory condition upon which alone leave to appeal could be given was not fulfilled. When the appeal came before the Provincial Commissioner this point was taken, and he perhaps not unnaturally treated it as a technicality which be could sweep aside, and ordered that the costs incurred by the respondent, £21 2s. 6d., in the Court of first instance should be at once paid to his Court, and that was eventually done. He then proceeded to allow the appeal.

Unfortunately, as was found by the majority of the Court of appeal and as their Lordships think, the Provincial Commissioner had no jurisdiction to make any order at all, because no appeal was properly before him. After all, it is to be remembered that all a