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KWABENA YEBOAH
V.
CHIEF KOFI TAIBIL
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
17TH DAY OF MARCH, 1952
W.A.C.A. NO. 32/51
2PLR/1952/81 (WACA)
OTHER CITATION(S)
2PLR/1952/81 (WACA)
(1952) XIV WACA PP. 484-487
LEX (1952) – XIV WACA 484-487
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
MANYO-PLANGR, J.
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BETWEEN:
KWABENA YEBOAH, KYIDOMHENE OF DORMAA (SUBSTITUTED) NANA BOAKYE TROMU II, OHENE OF NKWANTA, ON BEHALF OF THE STOOL OF NKWANTA – Appellant
AND
CHIEF KOFI TAIBIL OF SUSUANSO AS REPRESENTING THE STOOL OF SUSUANSO – Respondent
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ORIGINATING COURT(S)
Appeal from Land Court, Kumasi (Jackson, J., Presiding) by the co-plaintiff
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REPRESENTATION
Akufo Addo — for Appellant
K. A. Rossman — for Respondent (defendant)
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Jurisdiction of Land Court – When may be invoked
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeals from Native Court – Power to re-hear – Judgment of Native Court set aside – Native Courts (Colony) Ordinance, 1944, section 50.
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CASE SUMMARY
The above section authorises the appeal Court, namely the Court hearing an appeal from the Native Court, to re-hear the cause. The point in the present case was whether after the judgment of the Native Court was set aside there could be a hearing de novo in the appeal Court.
To begin with there was a judgment in the Native Court and then a judgment in the appeal Court (then the Court of the Chief Commissioner); later, on appeal from him, the West African Court of Appeal declared the trial before the Native Court to be a nullity and directed the Chief Commissioner’s Court to set aside the judgment of the Native Court and hear the case de novo; the Chief Commissioner’s Court set that judgment aside and adjourned the hearing to be made de novo sine die. Subsequent legislation replaced the Chief Commissioner’s Court by the Land Court as the appeal Court, and the case was transferred to the Land Court.
The Land Court Judge doubting whether he had jurisdiction to deal with the case, asked for the opinion of the West African Court of Appeal and was told to carry out its order as the successor of the Chief Commissioner; whereupon the Judge made an order for a plan and pleadings. The co-plaintiff in the case appealed on the ground that the Judge had no jurisdiction as the trial had been declared a nullity and the Native Court’s judgment had been set aside, which left nothing in the appeal Court to adjudicate upon.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal and setting aside the order of Land Court) that:
1. If the judgment of the Native Court is first set aside, there cannot be a re-hearing of the cause in the appeal Court as there is no judgment left for the appeal Court to reverse, vary or confirm.
2. In this case after the Native Court’s judgment was set aside by the Chief Commissioner’s Court (then the appeal Court) there was nothing pending there for transfer to the Land Court as its successor, and the Land Court had no jurisdiction to make the order appealed from.
Case cited:-
(1) Susa Avulete v. Dogbi Abortsi, W.A.C.A. Reports, 3rd January to 28th February, 1949, p. 31.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
This matter first came before the Court of Appeal in June, 1947, on appeal from a decision of the Court of the Chief Commissioner of Ashanti which was itself a judgment given on an appeal from a decision of the Asantehene’s “A” Court.
This Court declared the trial before the Asantehene’s “A” Court to be a nullity, and directed the Chief Commissioner’s Court, in the exercise of the powers it possessed as a Court of Appeal, to set aside the judgment · of the Asantehene’s “A” Court and to hear the case de novo.
Pursuant to that direction the Chief Commissioner’s Court on the 21st July, 1947, made the following order:-
“In accordance with the instructions issued by the West African Court of Appeal the judgment of the Asantehene’s “A” Court including the Order as to joinder is hereby set aside.
“Hearing of the case de novo adjourned sine die.”
By virtue of the provisions of section 7 of the Courts (Amendment) Ordinance, 1949, the case came before Jackson, J., then Judge of the Land Court, Kumasi, in February, 1950, and he, having doubts as to his jurisdiction to deal with the matter, stated a case for the opinion of this Court.
No order was made on the Case Stated, but Blackall, P., commented as follows:-
In this matter Jackson, J., reserved certain points of law for this Court arising out of a judgment of the West African Court of Appeal dated 2nd June, 1947. In that judgment the Court of Appeal directed that the Chief Commissioner in the exercise of his appellate powers should set aside the judgment of the Asarrtehene’s Court “A” and re-hear the case de novo, but they did not order the Writ to be set aside. That order in my opinion is quite unambiguous, and that being so, it is the duty of the Judge in the Court below to carry it out, as he has taken the place of the Chief Commissioner.”
The matter again came before Jackson, J., and on the 28th August, 1950, although he still held the view that he had no jurisdiction, out of deference to the view expressed by Blackall, P., in the Court of Appeal when the Case Stated came before it, he made the following order:-
“the plaintiff shall file a plan and a statement of claim within two months and that the defendants shall file statements of defence within one month of the date of the service upon them of the statement of claim and a copy of the plan,”
and it is against that order that the matter is again before this Court on appeal by the co-plaintiff, Nana Boakye Tromu II, Ohene of Nkwanta, on behalf of the Stool of Nkwanta.
On behalf of the appellant it was argued, inter alia, that the Court of Appeal having declared that the trial before the Asantehene’s “A” Court was a nullity and the judgment of the Asantehene’s Court having been set aside by the Chief Commissioner’s Court there was nothing before the Land Court, Kumasi, which could be adjudicated upon, and that the latter Court, therefore, had no jurisdiction to deal with the matter. The case of Suso Avulete v. Dogbi Abortsi (1) was cited in support of this argument.
Counsel for the respondent argued that the mere setting aside of the judgment of the Asantehene’s “A” Court did not oust the jurisdiction of the Chief Commissioner’s Court or its successor in jurisdiction, the Land Court, to hear and determine the matter in their appellate jurisdiction.
Suso Auulete v. Dogbe Abortsi was a case falling to be dealt with under the provisions of section 50 of the Native Courts (Colony) Ordinance, 1944, and it came before this Court as a “Case Stated”. The question upon which the opinion of this Court was asked reads as follows:-
“When the Land Court, sitting in its appellate capacity, decides to re-hear a cause in whole under the provisions of section 50 of the Native Courts (Colony) Ordinance, 1944, should the Court before hearing the evidence first set aside the judgment of the Native Court from which the appeal is made?”
and the following passage occurs in the answer given by the Court to that question:-
“… the Land Court may re-hear the cause if it chooses so to do, and may either reverse, vary or confirm the decision of the Court below. But if it were obliged to set aside the judgment of the Court below the exercise of these powers would be stultified. It would not be practicable to re-hear the cause in part for “that would leave the remainder of the case unheard. Nor would it be possible for the Land Court to vary or confirm a decision of the Court below which had already been set aside for that decision would have ceased to exist. For the same reason it could not reverse it.”
In my view there can be no doubt that this case was before the Chief Commissioner’s Court in its appellate jurisdiction, conferred by paragraph (b) of sub-section (1) of section 62 of the Courts Ordinance (Cap. 4), as it stood before it was repealed and replaced by section 5 of the Courts (Amendment) Ordinance, 1949. I am also of the opinion that the portion of the judgment in Susa Avulete v. Dogbi Abortsi, which I have quoted, applies with equal force to the case under consideration here.
It follows that, in my view, the judgment of the Asantehene’s “A” Court having been declared a nullity by this Court, and set aside by the Chief Commissioner’s Court, the latter Court became functus officio so far as the appeal was concerned, and there was then nothing pending before that Court for transfer to the Land Court, under the provisions of section 7 of the Courts (Amendment) Ordinance, 1949.
In my opinion, the doubts as to his jurisdiction, expressed by Jackson, J., were well founded, and I would, therefore, set aside the order which has been appealed against with costs.
The appellant to have his costs in the Court below, to be taxed. The costs of this appeal are fixed at £24 17s. 0d.
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COUSSEY, J. A.
I concur.
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MANYO-PLANGE, J.
I concur.
Appeal allowed: order of Land Court set aside.
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