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MENSAH alias KWEKU KAKRABA
V.
MRS. F. B. AWOONOR RENNER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
21ST DAY OF DECEMBER, 1951
2PLR/1951/26 (WACA)
OTHER CITATION(S)
2PLR/1951/26 (WACA)
(1951) XIII WACA PP. 342-344
LEX (1951) – XIII WACA 342-344
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.
KORSAH, J.
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BETWEEN:
MENSAH alias KWEKU KAKRABA OF KOTOKURABAH, CAPE COAST – Defendant-Respondent-Respondent-Appellant
AND
MRS. F. B. AWOONOR RENNER, per THOMAS HUGHES HALM, CAPE COAST, CARETAKER – Plaintiff-Appellant-Appellant-Respondent
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ORIGINATING COURT(S)
Appeal from judgment of the Land Court, Central Judicial Division, W.A.C.A. CIV.APP.60/50
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REPRESENTATION
F. Awoonor-Williams — for Respondent
J. Quist-Therson — for the Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Land Case – Claim in respect of an account for rents of a house – Appeal from Native Court to Magistrate’s Court and from Magistrate’s Court to Divisional Court which transferred appeal to Land Court – Where there was no jurisdiction by Land Court to hear appeal from Magistrate’s Court and no jurisdiction by Magistrate’s Court to hear appeal from Native Court – Effect of section 4 of the West African Court of Appeal Ordinance (Cap. 5) on right of appeal to the Court from Land Court.
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CASE SUMMARY
The defendant was the appellant. The plaintiff appealed from adverse judgments of the Native Court and of the Magistrate’s Court to the Divisional Court which transferred the appeal to the Land Court on the grounds that the action was a land case and allowed the appeal.
This Court held that the Land Judge was correct in holding that the action was a land cause. In view of finding that the action was a land cause there was no right of appeal to the Magistrate’s Court and, therefore, no right of appeal to the Divisional Court.
Counsel for respondent argued that the West African Court of Appeal could not entertain the appeal because section 4 of the West African Court of Appeal Ordinance (Cap. 5) does not confer a right of appeal to the Court when an appeal to the Supreme Court has been taken from a Magistrate’s Court.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal):
1. Section 4 of the West African Court of Appeal Ordinance did not apply.
2. The action was a land cause and an appeal, therefore, lay from the Native Court to the Land Court.
3. The only operative judgment was that of the Native Court, and the appeals to the Magistrate’s Court and to the Divisional Court and subsequent transfer to the Land Court were void and of no effect.
Cases referred to:
(1) Solomon v. Vanderpuye, Divisional Court, 28th June, 1934 (unreported).
(2) Attipoe v. Badu & Others, 5 W.A.C.A. 171 at 173.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J.
Mr. Awoonor-Williams for the plaintiff-respondent has submitted for the consideration of the Court, preliminary to the hearing of this appeal, that as the claim was in respect of an account for rents of a house and the plaintiff appealed from the adverse judgments of the Native Court and of the Magistrate’s Court to the Land Court, which reversed the former judgments and upheld his claim, no further appeal lies to this Court, because section 4 of the West African Court of Appeal Ordinance (Cap. 5) does not confer a right of appeal when the appeal to the Supreme Court has been taken from a Magistrate’s Court constituted by a District Commissioner not performing any of the functions of a District Magistrate within the definition of Magistrate in the Courts Ordinance (Cap. 4) and in the Interpretation Ordinance (Cap. 1).
To found this argument it was necessarily incumbent upon the plaintiff-respondent to show that all steps taken by him after the judgment of the Native Court were regular, and here Mr. Williams was confronted with the record which shows that he appealed from the Magistrate’s Court to the Divisional Court of the Supreme Court, thereby treating the matter as a personal suit. When, however, the appeal came on for hearing in the Supreme Court, he acquiesced in its transfer from the Divisional Court to the Land Court as in the opinion of the learned Judge and in the opinion of Mr Williams as Counsel for the then plaintiff-appellant, the cause was clearly a land cause.
The plaintiff-respondent’s answer to this now, is that the acquiescence of his Counsel in the view of the Judge of the Land Court was erroneous and that it cannot give this Court jurisdiction to entertain this appeal, and he prayed that this Court could and should ignore the judgment of the Land Court and should remit the suit to the Divisional Court to hear and determine the appeal from the Magistrate’s Court on the merits.
We have decided to examine the nature of the claim for upon it depends, not only whether the appeal is properly before this Court, but whether the steps taken after the judgment of the Native Court conform with the statutory provisions as to appeals.
The point is, whether the plaintiff’s action before the Native Court was a land cause, in which case, in the absence of a Native Appeal Court, the aggrieved party could appeal direct to the Land Court, or a personal suit, in which case an appeal lay to the Magistrate’s Court and from the Magistrate’s Court to the Divisional Court which latter procedure the plaintiff-respondent adopted.
Numerous decisions of this Court have held that in such cases the real issue between the parties must be the test and not merely the wording of the suit. A perusal of the record shows that the plaintiff claimed an account of rents, for the six years prior to suit, collected by the defendant from tenants which the defendant or his predecessor had placed in possession of the house. It is clear to me that the claim related to the ownership of land. Although the action was not, in form, openly a claim to establish ownership of the house, all the elements were stated by the plaintiff in his Writ upon which a declaration of title could be made in his favour including the boundaries of the land and a claim for an injunction to restrain the defendant from interfering with the house in question.
An analogous case, I think, is Solomon v. Vanderpuye, (1) (unreported), which the West African Court of Appeal cited in Attipoe v. Badu II & Others (2). This was an action before Deane, C. J. for an injunction to restrain the defendant from interfering with the plaintiff in collecting rents and letting certain premises. The learned C. J. held that he could not grant an injunction without going into the question whether the plaintiff owned the land and whether the tenants were the plaintiff’s tenants-questions which related to the ownership and occupation of land.
This view, I think, applies equally to the claim for rent. The defendant, whose case must also be looked to, set up his own title to the property and disputed the plaintiff’s claim and, indeed, the Native Court in its judgment held that the plaintiff had not established ownership and therefore no account were to be rendered by the defendant under any circumstances.
It follows, from the view expressed, that this was a land cause, that an appeal from the decision of the Native Court lay to the Land Court and not to the Magistrate’s Court. It follows further, that the plaintiff’s appeal to the Magistrate’s Court was irregular and contrary to the proviso to section 46 of the Native Courts (Colony) Ordinance, 1944, which gives a right of appeal to the Land Court and his appeal from the judgment of the Magistrate’s Court, void in itself, to the Divisional Court from which it was transferred to the Land Court is also a nullity.
The only operative judgment in this suit is, therefore, that of the Native Court “B” of the Oguaa State, dated the 6th September, 1941, and it is necessary to declare that the other judgments in the Courts below, in the, Magistrate’s Court and in the Land Court, are void and of no effect.
In the result the defendant-appellant’s appeal has been successful, although the plaintiff-respondent has anticipated the point as to jurisdiction by himself calling the Court’s attention to it. It would, however, have emerged in the course of the appeal and there is no reason, in my opinion, to deprive the defendant-appellant of his costs, as he was obliged to appeal to get rid of the judgment of the Land Court against him which is now declared to be a nullity.
The appeal is therefore allowed for the reasons stated, with costs in this Court, and the plaintiff-respondent will refund any costs paid to him by virtue of the judgment of the Land Court. The defendant-appellant will also have his costs in the Land Court and the other costs in the Courts below, such costs to be taxed if not agreed upon.
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FOSTER-SUTTON, P.
I concur.
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KORSAH A. J.
I concur.
Appeal allowed.
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