[1938] EACA 170

# APPELLATE CIVIL

### Before LUCIE-SMITH, J.

## JOSECK KABUBA (GIITA WA NDUATI) Appellant (Original Respondent)

## v.

# GITUTU WA MUTHEMBA, Respondent (Original Appellant)

### Civil Appeal No. 37/1938

Right of appeal-Native Tribunals Ordinance, 1930, section 34-Appeal from decision of Provincial Commissioner—Civil Procedure Ordinance, 1924, section 65 (1).

Appellant appealed to the Supreme Court from a decision of a Provincial Commissioner made on appeal under section 34 (3) of the Native Tribunals Ordinance, 1930.

Held (13-3-39).—That the decision of a Provincial Commissoner on appeal under section 34 (3) of the Native Tribunals Ordinance, 1930, is not a decree or order of a subordinate court, consequently the provisions of<br>section 65 (1) of the Civil Procedure Ordinance do not apply to such a decision.

Ross for the Respondent.—I submit on a preliminary point that this appeal is without jurisdiction. Section 65 (1) of the Civil Procedure does not apply to Native Tribunals whose decisions are governed as to appeals by section 34 of the Native Tribunals Ordinance, 1930. No appeal lies from the decision of a provincial commissioner acting under the Native Tribunals Ordinance. In certain cases he may be required to state a case. This case relates to immovable property so that in the present case the Provincial Commissioner could not be compelled to state a case.

Malcomson for the Appellant.—I submit that a decision by a Provincial Commissioner under section 34 $(3)$ is a judgment of a subordinate court and therefore liable to appeal under section 65 (1) of the Civil Procedure Ordinance.

JUDGMENT.—Mr. Malcomson for the appellant has informed the Court that this is an appeal under section 65 (1) of the Civil Procedure Ordinance. That section reads:-

"Unless otherwise expressly provided by this Ordinance an appeal shall lie from the decrees or from any part of the decrees, and from the orders of all subordinate courts to the Supreme Court".

The question then arises as to whether the decision of a Provincial Commissioner exercising powers under section 34 (4) of the Native Tribunals Ordinance, 1930, is a decree or order of a subordinate court.

A Native Tribunal is defined as a tribunal established under the Ordinance and is established by a Provincial Commissioner by warrant under his hand subject to the approval of the Governor.

If a native litigant elects to go before a Native Tribunal and is aggrieved by any order or decision he may within thirty days appeal from such decision to the native court of appeal or to a district officer. If on such appeal any person is aggrieved he may proceed by way of further appeal to a district officer.

Any person aggrieved by the decision of a district officer may appeal therefrom to the Provincial Commissioner.

Any person aggrieved by the decision of a Provincial Commissioner may in certain circumstances call on the Provincial Comissioner to state a case for the consideration of the Supreme Court and the Provincial Commissioner shall thereupon state such case.<br>The term "Provincial Commissioner" is defined in the Native Tribunals Ordinance, 1930, as the officer in charge of a province.

It would appear that the framers of the Native Tribunals Ordinance were at pains to make such tribunals independent of the Courts of the Colony and only allowed an appeal by way of case stated to the Supreme Court and then only in certain circumstances.

That such tribunals are in no way subordinate courts is evidenced by section 32 of the Ordinance which reads:-

"When a case is transferred from a Native Tribunal to a subordinate court ... "

while the marginal note to the section reads: —

"Proceedings on transfer from Native Tribunal to subordinate court".

Under section 36 the Governor in Council may by rule prescribe that an appeal shall not lie in any specified class of case, whether civil or criminal, either at all or beyond any specified authority.

In the case of Gichuke wa Kihanya v. Rex (East African Court of Appeal, Appeal No. 11/1933) a Judge of the Supreme Court ordered the issue of a Writ Certiorari removing the proceedings of the Provincial Commissioner to the Supreme Court. The facts of that case are briefly set out in the ruling of Lucie-Smith J. who said: "Section 34 (4) gives a limited right of appeal by way of case stated from the Provincial Commissioner to the Supreme Court". In the Court of Appeal, Barth C. J. in his judgment says: "It will be seen from the foregoing that irregularities of jurisdiction have in all probability been committed by the Provincial Commissioner, but the legislature in its wisdom has forbidden in cases such as the present an appeal to the Supreme Court". Abrahams C. J. queries: "Would it have been more mischievous and costly to have provided for the usual appeals granted in non-native cases?" In my opinion the provisions of the Civil Procedure Ordinance do not apply to this case and the decision of a Provincial Commissioner acting under section 34 (4) of the Native Tribunals Ordinance is not a decree of a subordinate court. I say this with all due respect to the opinion expressed by Johnson Ag. C. J. in the above quoted case in which he says: "I think a Native Tribunal must be considered to be a court".

$\sqrt{\ln m}$ opinion Mr. Ross' objection to the jurisdiction of this Court in the circumstances of this case must prevail and the appeal dismissed with costs.