THE AFRICAN LAW REPORTS

COKER v. COKER

SuPREME CouRT (Kingsley, J.): May 3rd, 1951

(Civil App. No. 20/50)
5
[1] Civil Procedure-appeals-procedure-failure to fulfil statutory condi~
tion fundamental to appeal procedure is defect depriving appeal court
of jurisdiction-no waiver of right to object by failure to take point:
Where an appellant fails to fulfil a statutory condition requisite for
the purposes of his appeal so that that failure amounts to a fundamental
10 defect, the effect is to deprive the appeal court of any jurisdiction
over the appeal and, if the appeal is nevertheless heard, to render
inapplicable any suggestion that the respondent waived his right
to object by not taking the point at the proper time; and therefore
failure to keep to a statutory time limit for the entering of an appeal,
or for providing security to abide by the judgment of an appeal
15 court, as provided in ss.5 and 9 respectively of the Appeals from
Magistrates Ordinance (cap. 14), renders any appeal proceedings a
nullity (page 131, line 37-page 132, line 39).
[2] Civil Procedure-judgments and orders-rectification-person affected
by null order entitled to have it set aside-court may set aside own
null order in exercise of inherent jurisdiction: A person who is
20 affected by an order of the court which can properly be described
as a nullity is entitled ex debito justitiae to have the order set aside,
and the court which made the order can set it aside in the exercise
of its inherent jurisdiction without it being necessary to appeal
(page 133, lines 4-10).
25 [3] Courts-jurisdiction-absence of jurisdiction-adjudication without
jurisdiction nullity-non-fulfilment of statutory condition fundamental
to appeal procedure deprives appeal court of jurisdiction: See [1]
above.
[4] Courts-jurisdiction-inherent jurisdiction-court may set aside own
null order: See [2] above.
30
[5] Courts-magistrates' courts-appeals-time limits laid down by
Appeals from Magistrates Ordinance (cap. 14), ss.5 and 9-failure to
observe time limit deprives appeal court of jurisdiction-no waiver of
right to object by failure to take point: See [1] above.

35 [6] Time-time for appeal-time limit laid down by Appeals from Magis-
trates Ordinance (cap. 14), s.5-failure to observe time limit deprives
appeal court of jurisdiction-no waiver of right to object by failure
to take point: See [1] above.
[7] Time-time for providing security for appeal-time limit laid down
by Appeals from Magistrates Ordinance (cap. 14), s.9-failure to
40 observe time limit deprives appeal court of jurisdiction-no waiver of
right to object by failure to take point: See [1] above.

130
 COKER v. COKER, 1950-56 ALR S.L. 130
s.c.
The respondent brought an action against the appellant in a
magistrate's court to recover rent which had been collected.
At the trial judgment was given for the respondent, and on
appeal the Supreme Court made an order remitting the case to
the magistrate's court for rehearing. It was then brought to the 5
court's attention that the appeal had not been entered within the
15 days laid down in s.5 of the Appeals from Magistrates Ordinance
(cap. 14), and that the appellant had not deposited security to abide
by the appeal court's judgment within the 15-day period specified by
s.9 of the Ordinance. 10

Cases referred to:

(1) Craig v. Kanssen, [1943] K.B. 256; [1943] 1 All E.R. 108, applied.
(2) Moore v. Tayee (1934), 2 W.A.C.A. 43, followed. 15
(3) Oranye v. ]ibowu (1950), 13 W.A.C.A. 41, dicta of Lewey, J.A.
applied.

Legislation construed:
Appeals from Magistrates Ordinance (Laws of Sierra Leone, 1946, cap. 20
14), s.5:
The relevant terms of this section are set out at page 131, line 40-
page 132, line 1.
s.9: The relevant terms of this section are set out at page 132, )ines 2-4.

KINGSLEY, J.: 25
The claim in this case which was for rent collected was decided
before Mr. Cummings-John, then acting magistrate, who on Novem-
ber lOth, 1950 gave judgment for the plaintiff for £18. Is. 3d. and
costs, and it was against this judgment that the defendant appealed
to the Supreme Court. 30
The appeal came before me on April 12th last when the appel-
lant was represented by counsel. The respondent appeared in person.
Before the learned acting magistrate both parties had appeared
in person. Assuming the papers to be in order, I heard the appeal
and remitted the case for a new hearing by another magistrate, Mr. 35
Cummings-John having by that time ceased to act.
After I had left the Bench, it was then brought to my notice
that the appeal had been out of time. The relevant sections of
the Appeals from Magistrates Ordinance (cap. 14) are ss.5 and 9
respectively. The former provides that-"every appeal against any 40
judgment . . . of a Magistrate's Court established in the Colony

131
 THE AFRICAN LAW REPORTS

shall be entered within fifteen days of the date of such judgment";

the latter provides that where the appellant as in this case gives
security to abide by the judgment of the appeal court "he shall pay
the amount thereof within the fifteen days allowed for appealing.''
5 In this case the necessary security was not deposited until
December 22nd, 1950, nearly a month after the expiry of the .statutory
period. The record of course should not have been transmitted to
the Registrar, as it should have been noticed in the magistrate's office
that the appellant was out of time. Not only was this not noticed,
10 but everybody likewise failed to observe that 18 + 1 = 19, and
not 29.
The appellant having failed to comply with the statutory
requirements, the appeal was thus wrongly admitted, and the pro-
ceedings before me accordingly a nullity. In Oranye v. ]ibowu (3),
15 Lewey, J.A. said (13 W.A.C.A. at 41):
"It should have been quite clear, when this case came from
the Magistrate to the Supreme Court Judge, that the defendant
appellant was out of time, and also that no steps had been
taken to extend the time . . . . Those were two very serious
20 defects, although they appear to have escaped the notice of
everybody concerned with the result that the Judge proceeded
to hear the appeal. In my view, however, they constitute an
irregularity so fundamental that there was no appeal which
the learned Judge could entertain, and, therefore, the mere
25 fact that the irregularity was not noticed or that no objection
was taken to it, is not an argument which can be put forward
with any effect when the matter comes before this Court.
The irregularity is not one of those of which it can be said
that the parties have waived their right to object owing to the
30 matter not having been brought up at the proper time. On the
contrary, it seems to me beyond doubt that failure to comply
with these statutory requirements deprived the Supreme Court
of any jurisdiction to hear the appeal. In other words, there
never was an appeal before the Supreme Court at all."
35 The learned judge then went on to refer to the case of Moore v.
Tayee (2), in which the Privy Council decided that where an appel-
lant failed to fulfil certain statutory conditions requisite for the
purposes of his appeal, that failure of his deprived the appeal court
of · any jurisdiction.
40 In short then the proceedings before me were a nullity, and the
question now arises: Can I myself set aside my own decision?

132
 ROBERTS v. COLE, 1950-56 ALR S.L. 133
s.c.
I
I' The answer I think is in the affirmative. In Craig v. Kanssen (1),
it was there held, to quote from the Law Reports headnote ([1943]
K.B. at 256) :
"A person who is affected by an order of the court which
can properly be described as a nullity is entitled ex debito 5
justitiae to have it set aside . . . . The court can set aside such
an order in its inherent jurisdiction and it is not necessary to
appeal from it."
I accordingly set aside my own order remitting the case for
a fresh hearing. It follows that the judgment in the court below 10
must stand and the appeal is struck out. In the circumstances I will
make no order as to the costs of the appeal.
Order accordingly.

15

ROBERTS v. COLE

SuPREME CouRT (Smith, C.J.): · June 15th, 1951

(Civil Case No. 258A/50) 20
[I] Land Law-joint tenancy-incidents-unity of possession, interest,
title and commencement: A joint tenancy is distinguished from a
tenancy in common by unity of possession, unity of interest, unity of
title and unity of commencement of such title; and therefore where
a testator devises property to named children for life but directs that 25
his daughters' interests should cease on marriage, there is no unity of
interest between sons and daughters and, notwithstanding the absence
in the will of words of severance, all the children named take as
tenants in common (page 135, lines ll-20).
[2] Land Law-tenancy in common--creation-devise to all children for
life with daughters' interests to cease on marriage creates tenancy 30
in common: See [1] above.
[3] Succession-wills-construction-joint tenancy and tenancy in com-
mon-devise to all children for life with daughters' interests to cease
on marriage creates tenancy in common: See [1] above.
35
The plaintiff brought an action against the defendant to recover
possession of certain properties to which he claimed entitlement
under a will.
A testator devised certain properties to his sons by one wife
and their heirs and his children by another wife. He stipulated 40
that "the whole of his children should have a life interest in the

133