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NORTEY TSURU
V.
JAMES NORTEI YEBUAH
WEST AFRICAN COURT OF APPEAL OF APPEAL HOLDEN AT ACCRA, GOLD COAST
9TH DAY OF DECEMBER, 1941
2PLR/1941/40 (WACA)
OTHER CITATION(S)
2PLR/1941/40 (WACA)
(1941) VII WACA PP. 172 – 174
LEX (1941) – VII WACA PP. 172 – 174
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
M’CARTHY, J.
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BETWEEN:
NORTEY TSURU – Plaintiff-Appellant
AND
JAMES NORTEI YEBUAH – Defendant-Respondent
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REPRESENTATION
J. Sarkodee Adoo – for Appellant
J. H. Coussey for E. C. Quist – for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
DEBTOR AND CREDITOR – CLAIM FOR ACCOUNT:- Money lent for trading purposes – Claim for account – Amount due – Duty of court thereto – Implication for jurisdiction of court which jurisdiction is dependent on a fixed maximum amount
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PRACTICE AND PROCEDURE
JURISDICTION:- Jurisdiction of Native Tribunal under the Native Administration (Colony) Ordinance— Claim made in Divisional Court for an account of £45 lent to Defendant for trading purposes in 1900 — Where Trial Judge ordered that as the amount did not exceed the jurisdiction, the case should be heard by such Tribunal – Attitude of appellate court thereto
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
That the stage had not been reached where it would appear to the Court that the amount involved did not exceed £100 as the amount in course of trading might have multiplied itself.
Appeal allowed, the order is set aside and the case was referred back to the Court below with the direction that it should continue the hearing until the amount at issue is ascertainable and then if necessary a similar order may be made.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND M’CARTHY, J.
The plaintiff caused to issue in the Divisional Court, Accra, a writ against the defendant in following terms:
“The plaintiff claims –
(1) to have a full and true account of the forty-five pounds (£45) given by plaintiff to defendant sometime in 1900 for trading purposes and of which defendant paid to plaintiff in December, 1940, the sum of seventy pounds (£70) on account, and
(2) an Order for payment to plaintiff of the balance of amount which may be found due to plaintiff.”
It may be remarked that on the face of it the writ appears to disclose no cause of action, but this point has not been taken and no doubt can be remedied by a simple amendment. Upon the case being called before Bannerman, J., counsel for the defendant immediately submitted that the case was properly cognizable by a Native Tribunal under the provisions of section 48(1) and (2)(e) of the Native Administration (Colony) Ordinance (Chapter 76) and consequently it was the duty of the Court to stop the case before it and refer the parties to the competent Tribunal under the provisions of section 65 of that Ordinance.
Counsel for the plaintiff made submissions to the contrary effect. After hearing argument the learned Judge made the following Order:-
“I have no hesitation in holding that this case is properly within the jurisdiction of the Native Tribunal. Both parties are natives of Accra. The amount involved does not exceed the jurisdiction of the Highest Native Tribunal of Accra. Furthermore the claim is a personal one and the account to be enquired into is relatively speaking infinitestimal and any Registrar of a Native Tribunal with a nodding acquaintance with the elements of arithmetic should be able to understand and guide the Tribunal. But let us assume that this is a case which comes specifically within equity jurisdiction of this Court. Here I must sound a note of warning that there is no rule of law — written or unwritten — which excludes the Native Tribunals from having cognizance of cases involving accounts. Indeed, it is clear that the equity jurisdiction is expressly conferred on Native Tribunals so long as the amount involved does not exceed £100 (see section 48 s.s. 2(a) and (b) of the Native Administration Ordinance. In my opinion section 15 of the Courts Ordinance is wholly inapplicable.
Parties are referred to a competent Native Tribunal.”
We agree with the whole of this ruling except the one sentence “The amount involved does not exceed the jurisdiction of the Highest Native Tribunal of Accra,” and, it follows, the finding and order.
Upon this point of amount we think that the learned Judge misdirected himself. In our view there was nothing, before him by which he could form any opinion as to the amount involved. True, the claim is for an account of only £45 but that £45 was “given” (in the wording of the writ) forty-one years ago and through the ups and downs of trading through boom years and slumps that £45 may perhaps have been multiplied many times in forty-one years or perhaps not multiplied at all. No one can say until at least accounts are filed and possibly surcharged and falsified.
Before an Order referring can be made under section 65 of the Ordinance, it must appear to the Court that the matter is one properly cognizable by a Native Tribunal. It cannot so appear to the Court under section 48(2)(e) until it appears that “the debt, damage or demand does not exceed one hundred pounds.” But as has been pointed out, the stage had not been reached when could possibly appear to the Court that the debt, damage or demand did not exceed £100. Therefore in our opinion the Order of reference made by the learned Judge was premature and cannot stand.
The appeal is accordingly allowed and the Order against which this appeal is brought is set aside, and the case is referred back to the Court below with the direction that it should continue the hearing of the case until it shall appear that the demand does not exceed one hundred pounds. If and when it does so appear another order in similar terms can be properly made.
The appellant is awarded costs in this Court assessed at £28. 7s. 11d. In the Court below the appellant is to have, in any event, the costs occasioned by the respondent’s premature submission. The remaining costs are to abide the event.