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C. A. VANDERPUYE
V.
J. N. FLANGE AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, SIERRA LEONE
19TH DAY OF NOVEMBER, 1942
2PLR/1942/15 (WACA)
OTHER CITATION(S)
2PLR/1942/15 (WACA)
(1942) XIII WACA PP. 170 – 172
LEX (1942) – WACA PP. 170 – 172
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BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J. SIERRA LEONE
AND BANNERMAN, J.
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BETWEEN:
C. A. VANDERPUYE – Plaintiff-Appellant
AND
1. J. N. FLANGE
2. FLORENCE VANDERPUYE,
[JOINT SUCCESSORS TO CHARLES OKAI VANDERPUYE (DECEASED)]
3. AND NII TETE QUAYE MOLAI, AS KORLE PRIEST – Defendants-Respondents
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REPRESENTATION(S)
R. E. Philips — for Appellant
A. M. Alciunani — for first two Respondents
No appearance by or for 3rd Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Claim for damages for breach of a covenant of title — Suit relating to the ownership, possession or occupation of land — Jurisdiction thereto — How determined — Whether a Native Tribunal has jurisdiction thereof
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PRACTICE AND PROCEDURE ISSUE(S)
JURISDICTION:- Jurisdiction in suits relating to land — Customary law — Action relates to transactions agreed to be governed by English law — Jurisdiction of Native Tribunals — Provisions of section 48(1) of Native Administration (Colony) Ordinance.
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CASE SUMMARY
The action by the plaintiffs was one claiming damages for breach of a covenant of title. There were no pleadings. At the trial defendant respondents submitted Court had no jurisdiction as it was a suit which related to the ownership, possession or occupation of land.”
Chief Justice upheld contention and referred parties to the appropriate Tribunal under section 65 of the Native Administration (Colony) Ordinance (Cap. 76).
Upon appeal plaintiffs raised for first time the provisions of section 48(1) of the Native Administration (Colony) Ordinance which provides that Native Tribunals have no jurisdiction where the matter is one the parties have agreed shall be governed by law other than native customary law.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal):
1. Covenant for title has no existence in native customary law and that it clearly appeared that by implication parties had agreed that their obligations should be governed by English law.
2. further that the jurisdiction of the Native Tribunal was ousted by the proviso. Appeal allowed.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, GRAHAM PAUL, C.J., SIERRA LEONE AND BANNERMAN, J.
In this case the plaintiff’s claim was as follows:-
“The plaintiff claims against the defendants Nii Tete Quaye Molai as Korle Priest jointly and severally with defendants J. N. Plange and Florence Vanderpuye as Successors of the late Charles Okai Vanderpuye three hundred and fifty pounds (£350) Damages for Breach of Covenant of Title contained in an Indenture dated 26th November, 1936, between the said Charles Okai Vanderpuye (now deceased) of the one part, the defendant Nii Tete Quaye Molai as Korle of the second part and the plaintiff of the third part. Of the total damages claimed, £112 10s is Special Damages for money paid by the plaintiff for a consideration which has totally failed, and expenses incurred by him in respect of the contract contained in the said Indenture and £237 10s is for General Damages.”
There were no pleadings but when the case came on for hearing before the learned Chief Justice in the Divisional Court at Accra, after counsel for the plaintiff-appellant had opened, counsel for the first two defendants-respondents submitted that the Court had no jurisdiction to hear it as it is a suit which relates to the ownership, possession or occupation of land.” Counsel for the plaintiff-appellant submitted that it was not such a suit, but the learned Chief Justice overruled him, upheld the contention of the defendants-respondents and referred the parties to the appropriate Tribunal under section 65 of the Native Administration (Colony) Ordinance (Cap. 76). Upon appeal to this Court the following point is raised for the first time by ground 4(b) of the Grounds of Appeal—
“Under the provisoes to sections 48(1) and 49(1) of the Native Administration Ordinance no Native Tribunal has jurisdiction over this suit, as the transactions involved in the Conveyance of the land to C. O. Vanderpuye by the Korle Priest and in the Conveyance thereof by the Korle Priest and C. O. Vanderpuye to the appellant are governed exclusively by English Law and Native Customary Law is not applicable thereto.”
This point was not raised by counsel for plaintiff-appellant in the Court below and does not appear to have been considered by the learned Chief Justice in making his order of reference. We feel compelled to allow it to be raised for the first time in this Court, since a question of jurisdiction is involved, and further we feel bound to uphold the contention.
This is a suit claiming damages for breach of a covenant of title. A covenant of title has no existence in native customary law; the rights and liabilities under a covenant of title can be ascertained only by reference English law — i.e. this case comes under the terms of the proviso to section 48(1) of the Native Administration (Colony) Ordinance, which reads:-
“Provided always that a Paramount Chief’s Tribunal shall not, unless the parties shall agree thereto, have any jurisdiction in any cause or matter where it appears either from express contract or from the nature of the transactions out of which such cause or matter shall have arisen that the parties expressly or by implication agreed that their obligations in connection with such transactions should be regulated substantially according to the provisions of some law or laws other than native customary law, or where otherwise some other such law or laws as aforesaid is or are properly applicable thereto.”
We are of opinion that it clearly appears both that the parties by implication agreed that their obligations in connection with the transactions should be regulated substantially according to the provisions of English law and that the only law properly applicable thereto is English law, and that therefore the jurisdiction of the Native Tribunal is ousted by the proviso.
The appeal is accordingly allowed, the order of the Court below is set aside, and the case is remitted to the Court below for trial.
Since the appellant succeeds upon a point taken for the first time in this Court, all parties will bear their own costs in this Court. Costs in the Court below, both those already incurred and those to be incurred will be in the discretion of the trial Court.
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