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ADU KOFI
V.
CHIEF KWESI BRENTUO, ETC.
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
21ST DAY OF FEBRUARY, 1944
2PLR/1944/29 (WACA)
OTHER CITATION(S)
2PLR/1944/29 (WACA)
(1944) X WACA PP. 92 – 96
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
FUAD, J.
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BETWEEN:
ADU KOFI – Defendant-Appellant
AND
CHIEF KWESI BRENTUO FOR AND ON BEHALF OF THE STOOL OF ADOKWAI – Plaintiff-Respondent
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ORIGINATING COURT(S)/TRIBUNAL(S)
APPEAL BY DEFENDANT FROM DECISION OF SUPREME COURT
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REPRESENTATION
J. H. Coussey — for Appellant
H. A. Hayfron-Benjamin — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Claim for cocoa tribute due by Defendant for farming on Stool land under an oral agreement — Appeal arising from judgment given thereto by default (described as “ex parte”) — Jurisdiction of Supreme Court to entertain a suit where only some issue of fact or law is raised for the Court’s decision as to the ownership possession or occupation of land — Proper treatment of
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PRACTICE AND PROCEDURE ISSUE(S)
JURISDICTION:- Jurisdiction of the Supreme Court in Ashanti — Courts Ordinance, s. 14, s. 17 (b); Native Courts (Ashanti) Ordinance (Cap. 80) s. 35 — Practice — Supreme Court Rules, o.34, R. 5 — Reviewed — “Ex parte” judgment
EVIDENCE:- Facts which may be relevant to the resolution of a dispute but not brought before the Court — Attitude of court thereto — Whether such omission can be ground of appeal
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CASE SUMMARY
Plaintiff sued for £114 as cocoa tribute due by Defendant for farming on Stool land under an oral agreement, and obtained judgment by default (described as “ex parte”) in the Divisional Court of the Supreme Court. Defendant applied for review of the judgment but as the Judge went on leave, he dropped that application and asked for leave to appeal. On appeal it was argued for him that that Court had no jurisdiction, there being a competent Native Court (to which the parties should have been referred) with jurisdiction in suits relating to the ownership, possession or occupation of land”, the present suit being of that nature. The Plaintiff-Respondent’s reply was that it did not “appear to the Divisional Court” that the suit was one properly cognisable by a Native Court.
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
Held (dismissing the appeal):
1. Held that the Supreme Court will decline to entertain a suit only where some issue of fact or law is raised for the Court’s decision as to the ownership possession or occupation of land, and that it is to the issues to be tried that one must look and not merely the wording of the writ.
2. Held also that where the Court is given general jurisdiction subject to a direction not to exercise it where it appears that are certain facts existing in the suit, a party omitting to bring them to the notice of the Court cannot complain if the Court comes to a conclusion without reference to such facts
Obiter:
(1) Only the Judge who gave the judgment can be asked to review it.
(2) Where judgment is given by default, the proper application is under O.34, R.5, of the Supreme Court Rules, which may be made not only to the Judge who gave the judgment but also to the Court.
(3) It is incorrect to describe a judgment as ex parte where the Defendant had been given notice.
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MAIN JUDGMENT
The judgment of the Court was delivered by Graham Paul, C.J. (Sierra Leone):-
This appeal is within a very small compass but it raises a point of considerable general importance. The Respondent took action against the Appellant in the Ashanti Divisional Court of the Supreme Court, the claim in the Writ being as follows :-
“The Plaintiff’s claim is for the sum of £114 being cocoa tribute for six at the rate of £19 a year due and owing by the Defendant to the Plaintiff for fanning on land known as Doduodwima belonging to the Stool of Adokwai aa per verbal agreement with the Stool of Adokwai.”
The case was heard in, default of the Defendant-Appellant’s appearance and the only evidence given was that of the Plaintiff-Respondent himself. As his evidence is short and of importance in the consideration of the main issue raised in this appeal it may be quoted at length:-
“I am the Odikro of Adokwai and have the authority of the Stool to bring this section on their behalf. The Defendant owes the Stool £114 for cocoa-tribute for 6 years at £19 a year. My predecessor entered into the agreement with Defendant. Defendant comes from Abodom and is a subject of the Omanhene of Adansi as Adokwai is. The money has been demanded many times but Defendant refuses to pay. He denies liability. Defendant paid tribute at one time, but then stopped.”
Upon that evidence the Court below gave judgment for the Respondent in terms of his claim and from that judgment the appellant appeals to this Court.
It may be mentioned that prior to the application for leave to appeal there was a motion by the Appellant for a review but that motion was dropped in favour of the present appeal, apparently for the reason that the application for review was delayed and the Judge who tried the case had gone on leave. It is of course true that only the Judge who gave the judgment could be asked to review it, but an examination of the application for review shows that it was misconceived. The grounds put forward for a review were not grounds for a review at all, but grounds for an application under Order 34 Rule 6 of the Supreme Court Rules to set aside the judgment obtained against the Defendant-Appellant in his absence. An application under that Rule can of course be made to ”the Court” and not only to the Judge who gave the judgment. No such application was made and no reason is given why it was not made.
Parenthetically it must be noted that in giving judgment the Court below said – “Judgment — ex parte — for the Plaintiff”, but as the Court was satisfied that the hearing had been on notice to the Defendant, it was incorrect to describe the judgment as “ex parte “.
The grounds of Appeal are also short and may be quoted in full.
They are:-
“1. That the Divisional Court had no jurisdiction to hear and determine the suit.
“2. That there was a Court of competent jurisdiction capable of hearing the case at the time the suit was filed and heard by the Divisional Court.”
The jurisdiction of the Supreme Court is set out in section 14 of the Courts Ordinance which is as follows:-
”The Supreme Court shall be a Superior Court of Record, and in addition to any other jurisdictions conferred by this or any other Ordinance shall, within the Gold Coast and subject as in this Ordinance mentioned, possess and exercise all the jurisdiction powers and authorities which are vested in or capable of being exercised by His Majesty’s High Court of Justice in England.
Provided that the Admiralty jurisdiction and authority of the Supreme Court shall be exercised by virtue and in pursuance of the provisions of the Colonial Courts of Admiralty Act, 1890.”
It is quite clear from the terms of that section that the general jurisdiction so given covers the present suit, but the Appellant founds upon section 17 (b) of the Courts Ordinance which is in the following terms:-
”Notwithstanding anything in this Ordinance contained the Supreme Court shall not exercise jurisdiction-
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“(b) in Ashanti in any civil cause or matter subject to the provisions of section 311 of the Native Courts (Ashanti) Ordinance, save and except in accordance with the proviso to such section, or in any cause or matter within the jurisdiction conferred on the Ashanti Chief Commissioner’s Court by sections 62 and 64 of this Ordinance.”
Next must be considered section 35 of the Native Courts (Ashanti) Ordinance (Cap. 80) the material part of which is as follows:-
“Whenever it shall appear to the Chief Commissioner’s Court or the Divisional Court, or a Magistrate’s Court that any civil cause or matter brought before it is one properly cognizable by a Native Court and that a Native Court with jurisdiction to try such civil cause or matter has been established under the provisions of this Ordinance, such Chief Commissioner’s Court or Divisional Court or Magistrate’s Court as the case may be shall stop the further progress of such civil cause or matter before it and refer the parties to a competent Native Court as the case may be; and the Court shall thereupon order such costs as it shall deem fit.”
There are certain provisoes to that section but they do not apply to the present case.
The contention for the Appellant is that under the last-quoted section the Court below should have stopped the case before it and referred the parties to a competent Native Court. The Respondent’s answer is that in the proceedings before the Court below it did not “appear to x x x the Divisional Court” that the cause or matter in question was one properly cognizable by a Native Court and that therefore there was no reason for action being taken under section 35.
It is not seriously disputed by the Respondent that there was a Native Court available in the area in question with jurisdiction in suits relating to the ownership, possession or occupation of land, but it is contended that it did not appear to the Court below that the present case was a suit “relating to the ownership, possession or occupation of land.”
As the Defendant-Appellant made no appearance in the Court below there was of course no definition of any issue between the parties but Appellant’s Counsel contends that a suit such as this, in which tribute for farming on land is claimed, must necessarily be regarded for this purpose as a suit relating to the ownership, possession or occupation of land, whatever the defence to it may be and whatever the issue between the parties may be. Carried to its logical conclusion that argument would mean that where a plaintiff claimed arrears of tribute or rent for land it would be a suit relating to ownership, possession or occupation of land even if the defendant appeared and admitted the amount claimed. If the argument for the appellant is upheld that is the result.
We are unable to accept this argument. It seems to us that where, as here, classes of suits are being stated in which the Divisional Court is in certain circumstances to be prevented or rather is in certain circumstances to prevent itself-from exercising a jurisdiction given to it, one must interpret the words “relating to” in a stricter sense. In our view, for the purpose, a suit “relating to the ownership, possession or occupation of land” must mean in this connection a suit in which some issue of fact or law is raised for the Court’s decision as to the ownership, possession or occupation of land.
It follows that it cannot be said definitely that a suit relates, or does not relate, to ownership, possession or occupation of land until it is known, not only what the Plaintiff claims, but what the defence is.
This view is in accordance with the view expressed by the President of this Court in the case of Kwow v. Ohene Essien Eku II as follows:-
“The short point in this case is whether the case before the Native Tribunal was a suit or matter relating to the ownership, possession or occupation of any land so that an appeal would lie from the decision to the Provincial Commissioner’s Court under section 75 of the Native Administration Ordinance (Cap. III). In cases such as this, the real issue between the parties must be the test and not merely the wording of the suit.”
(2. W.A.C.A. 180).
Each suit must be considered on its own particular facts, and in the case of Agyeman and others v. Panin (6 W.A.C.A., 11) upon which the Appellant founded the Defendant had appeared and from his defence it was clear that an issue as to occupation of land was raised. This Court accordingly held in that case that it was “clearly a suit relating to the occupation of land.”
In short our view is that where the Legislature is sorting out suits as between different Courts it is to the issue to be tried that one must look. Our view, is we think, further supported by the decision in the English case, In re Staines-Staines v. Staines, (55 L.J. Chancery p. 913) where it was held that an action brought claiming rents and profits of real estate was not a cause or matter relating to real estate” within the meaning of a Rule of the Supreme Court using the words quoted. Manifestly, in the ordinary conversational meaning of English words an action claiming rents and profits of real estate is a “cause or matter relating to real estate”, but the Court in the Staines case did not accept that conversational meaning of “relating to”. The Court in that case looked to the issues it had to try in the action and as it had not to try any issue as to real estate it held that the action was, from the Courts point of view, not a “cause or matter relating to real estate.”
In the present case in our view all that “appeared to the Divisional Court was that the suit might or might not be a suit relating to ownership possession or occupation of land, depending on the nature of the defence. As the defendant elected not to appear the nature of the Defence did not “appear” to the Divisional Court, indeed, so far as the Court knew, there was no defence, and therefore it did not appear to the Divisional Court that the suit was one relating to the ownership possession or occupation of land so no action under section 36 was called for.
The essential words of the material section, “Whenever it shall appear x x x to the Divisional “Court”, deserve, we think, some comment in this appeal. It is no doubt the duty of the Court to know the law, and to apply that knowledge in considering judicially what “appears” or does not “appear” to the Court. But the parties to the suit have a right to put before the Court any facts of the particular case which might assist the Court in that consideration. If a party, knowing such facts of the particular case, omits to bring them to the notice of the Court, he cannot complain if the Court comes to a conclusion without reference to such facts. Nor in our opinion can the Appeal Court entertain such a complaint. It is quite true that the omission of a party to put before a Court facts showing that the Court had no jurisdiction would not confer on the Court a jurisdiction which it did not possess. But here the Court, under section 14 of the Courts Ordinance, had the necessary jurisdiction and could, and indeed must, exercise that jurisdiction unless and until it appears to the Court that there are facts which by statute prevent such exercise of its jurisdiction. We are unable to find that in the present case the Court below was wrong in exercising its jurisdiction as it did.
For these reasons the appeal is dismissed with costs assessed at £24 16s.
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