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CAPTAIN ABROKYI
V.
OHENE SENNI PANYINLI
WEST AFRICAN CCOURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
23RD DAY OF MAY, 1932
2PLR/1932/10 (WACA)
OTHER CITATION(S)
2PLR/1932/10 (WACA)
I WACA PP. 205-214
LEX (1932) — 1 WACA 205-214
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BEFORE THEIR LORDSHIP(S):
MICHELIN, J.
HORNE, J.
MACQUARRIE, J.
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BETWEEN:
CAPTAIN ABROKYI (SUBSTITUTED FOR KONI DECEASED) — Plaintiff-Appellant
AND
OHENE SENNI PANYINLI — Defendant-Respondent
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REPRESENTATION
R. S. BLAY — for the Plaintiff-Appellant
C. C. LOKKO — for the Defendant-Respondent
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ISSUES FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Declaration of title — Relevant considerations
CUSTOMARY LAW — CHIEFTAINCY MATTERS:- Claim to dignity under Section 34 of the Native Administration Ordinance
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CASE SUMMARY
In an action brought before a Native Tribunal, the plaintiff, suing in a representative capacity as the Chief of Bomuapoley, claimed a declaration —
(1) that his ancestors were co-owners with the defendant’s ancestors of all the Akomu lands, and
(2) that his ancestral Stool at Bomnapoloy make second to the ancestral Stool of the defendant.
Judgment was delivered in favour of the plaintiff with costs.
On an appeal being taken to the Provincial Commissioner of the Wertera Province from this judgment, the judgment of the Native Tribunal was set aside and a rehearing granted on the ground that the procedure adopted by the Native Tribunal was wrong in that two distinct causes of action were joined in one writ of summons as follows:
(1) a claim to a declaration of title to land in respect of which there was a right of appeal, and
(2) a claim to a title or dignity in respect of which there was no right of appeal except to the Governor.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
On appeal to the West African Court of Appeal, the Court (Michelin, J. dissenting) set aside the judgment of the Provincial Commissioner and restored the judgment of the Native Tribunal on the ground that the proceedings before that Tribunal had been instituted solely for the trial of a political dispute between two Stools and were therefore not appealable to any Court.
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MAIN JUDGMENT
The following judgments were delivered:
MICHELIN, J.
This is an appeal from a judgment of the Provincial Commissioner of the Western Province dated the 29th January, 1932, in which he allowed an appeal from the judgment of the Native Tribunal of the Paramount Chief of Eastern Nzima holding that the proceedings before the Native Tribunal were null and void.
The particulars of claim in the writ of summons instituted in the Native Tribunal read as follows:
“The plaintiff as the Chief of Bomuapoley, successor to late Chief Meenla of Bomuapoley in the division of Nkroful Eastern Nzima State, claims that his ancestors are the co-owners of all the Akomu lands and leased some of these lands either jointly or independently with the defendant’s ancestors according to leases in plaintiff’s possession.
“The plaintiff further claims that the plaintiff’s ancestral Stoal of Bomuapoley ranks second to the ancestral Stool of the defendant from the time of yore.”
The Native Tribunal delivered a written judgment on the 20th January, 1931, in which as to the first portion of the plaintiff’s claim, they held in his favour, and as to the second portion of the claim, they made the following order:
“1. We raise the status of Chief Meenla Stool of Bomuapoley to be the senior Odikro according to plaintiff and defendant and according to Akomu history to carry the foot of Akomu as before.
2. That all the other Odikrofu of Akomu are to serve the Divisional Stool of Akomu through the senior Odikro Stool of the plaintiff.
3. That this Chief Meenla Stool of Bomuapoley is to serve the Paramount Stool of Eastern Nzima at all times and under all circumstances through the Divisional Stool of Nkroful.
4. That any lease for any land in Akomu must not after this judgment be executed independently by the plaintiff at any time, but must in all cases be executed with his Divisional Chief and vice versa which shall be a legal document and not otherwise.
5. That in executing any lease for land in Akomu in future some of the responsible elders, councillors and linguists must be present to witness the same being executed.
6. That the proceeds of all lands sold in Akomu or any Oman revenue must be divided into three equal parts, one share to be given to the defendant’s stool as before. The two shares must also be divided and one share for the plaintiff’s stool of Bomuapoley and after this the remaining two parts must again be divided equally between Evonla quarter, Ebukolo Kyi quarter and Ejasi quarter respectively.”
They also granted awarded costs as against the defendant.
On the 21st March, 1931, the defendant filed an application for leave to appeal. This was granted by the Native Tribunal on the same day under the usual conditions prescribed in making appeals to the Court under the provisions of section 83 of the Native Administration Ordinance. It was, however, stated by the Native Tribunal in the course of making the order as follows:
“This being a political dispute the appeal goes to the Governor direct.”
Upon the conditions being fulfilled, however, the record was apparently not forwarded to the Governor, but came on for hearing before the Provincial Commissioner on the 9th January, 1932, when certain submissions were made by Mr. Williams on behalf of the defendant-appellant which were subsequently upheld by the Commissioner in the course of his written judgment.
In the course of his judgment he stated as follows:
“It will therefore be seen that two different causes of for action have been made into one suit and so disposed of by the Tribunal. One cause of action is a claim for the ownership of land and the other is a claim for the declaration of rank, a constitutional issue.
“The merging of the two causes of action in one suit has led to the reception of evidence on the whole which would not have been properly receivable in one or other of the claims separately.
“Further, in accordance with the provisions of the Native Administration Ordinance the appeal so far as the claim to land is concerned lies to this Court, whereas that in connection with the claim to rank lies to His Excellency the Governor.”
In arguing the appeal before this Court, Mr. Blay on behalf of the appellant submitted that the judgment of the Native Tribunal being that of a Court of competent jurisdiction could not be held to be null and void. He further submitted that the whole subject matter of the suit was one, and that the Tribunal had granted leave to appeal to the Governor and not to the Provincial Commissioner.
He referred the Court to the case of Adanji v. Hunvoo, Renner’s Reports 497, where it was held by the Full Court of Southern Nigeria in 1908 that although the Supreme Court had jurisdiction to hear and determine actions in regard to land when the title was based upon chieftaincy, yet when the claim was merely to establish a title or dignity, it had no jurisdiction. It is clear that this decision does not apply in this Colony at the present day by reason of the provisions of the Native Administration Ordinance (Cap. 111), whereby all original jurisdiction in questions as to title to land and also as to claims to title or dignities has been taken away from the Supreme Court.
Now as to the jurisdiction of a Paramount Chief’s Tribunal. The civil jurisdiction of a Paramount Chief’s Tribunal is provided for by section 43 of the Native Administration Ordinance (Cap. 111).
Subsection (1) of that section reads as follows:
“Suits relating to the ownership, possession or occupation of lands situated within the State of such Paramount Chief.”
and subsection (9) of the same reads as follows:
“Any other causes and matters by this Ordinance expressly assigned to a Paramount Chief’s Tribunal.”
Section 34 provides as follows:
“If any controversy or dispute of a political or constitutional character shall arise between a Paramount Chief and a Divisional Chief or Chief subordinate to him, or between a Divisional Chief and a Chief subordinate to him, the matter in issue shall be heard and determined by the State Council or before the Paramount Chief’s Tribunal; provided that the decision of the State Council or Paramount Chief’s Tribunal shall be subject to an appeal to the Governor, whose decision shall be final.”
In proceedings under section 34 an appeal lies to the Governor only, whereas in land cases by section 75 an appeal lies to the Provincial Commissioner’s Court and by section 81 (as amended by section 2(6) of Ordinance No. 31 of 1929) a further appeal lies to the West African Court of Appeal.
The procedure as to the granting of leave to appeal and conditions of appeal only applies under section 83 to appeals brought before the Court, which expression includes a Provincial Commissioner’s Court and does not include appeals to the Governor (see definition in section 2). While, therefore, the Paramount Chief’s Tribunal has jurisdiction to hear and determine suits relating to ownership, possession or occupation of lands-situate within their State, they also have jurisdiction to hear and determine certain matters of a political or constitutional character arising in their State, but the method of instituting such proceedings is in my opinion necessarily different.
The definition of “matter” is given in section 2 as follows:-.
“Matter includes every proceeding in a Court or Tribunal not in a cause.”
In my opinion, therefore, it would not be competent to join in a suit claiming a declaration of title to land under section 43 (26), a claim to a title or dignity or other constitutional matter under section 34.
It is also not necessary or competent to apply for leave to appeal from a decision under the latter section, the aggrieved party being entitled as a matter of right to appeal to the Governor from such a decision.
Leave to appeal having been sought and granted however, under the provisions of section 83, the appeal was in my opinion properly before the Court as constituted by the Provincial Commissioner.
In my opinion the whole procedure adopted by the Native Tribunal was wrong. Although the judgment on the first portion of the writ of summons, which amounted to a declaration of title to land, cannot on the face of it be regarded as a nullity, yet in view of the misjoinder which has taken place, in my opinion there should be a new trial.
The judgment of the Court below allowing the appeal from the Native Tribunal and ordering a re-hearing should therefore be upheld, and the judgment of the Native Tribunal set aside. The Native Tribunal will thus have the opportunity either of amending the writ of summons originally issued before it, by deleting the second cause of action, or of issuing entirely new process.
As no objection to the writ was taken when the case was before the Native Tribunal, I do not consider that the respondent should pay the appellant’s costs in the Native Tribunal, and that portion of the Provincial Commissioner’s Order should therefore be deleted from his judgment.
The respondent should however, have the costs of this appeal.
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HORNE, J.
This is an appeal from the judgment of the Provincial Commissioner of the Western Province declaring the proceedings before the Omanhene’s Tribunal null and void. The Provincial Commissioner came to the conclusion that there were two claims made in these proceedings by the plaintiff-appellant:
(1) A claim to ownership of certain lands, the Akomu lands, and
(2) A claim for a declaration that the plaintiff-appellant’s ancestral stool ranks second to the ancestral stool of the defendant.
He allowed the appeal, and ordered the issues of the action to be separated and new proceedings to be taken as soon as the political situation allowed.
Against his judgment the plaintiff appeals on the ground that the learned Commissioner was wrong in law, and that has been argued by Counsel for appellant on the lines that the Court had no jurisdiction to hear the appeal and that if he could entertain it, he nevertheless should not have held the proceedings to be null and void.
If the wording of the summons by which the proceedings were commenced is alone to decide whether two distinct claims are made, then there is some jurisdiction for the Provincial Commissioner’s opinion. Only one part of the claim, assuming that it is divisible, was appealable before him. On that assumption he should have heard the appeal relating to land, and left the other part to be dealt with by appeal to the Governor.
Instead of so doing, he applied a technical rule of English law relating to joinder of causes of action and held that
“the merging of two causes of action in one suit has led to a misreception of evidence on the whole which would not have been properly receivable in one or other of the claims separately.”
How he is able to hold what would amount to a misreception of evidence in a cause or a matter with respect to which an appeal to him does not lie, I am unable to understand. Section 34 of the Native Administration Ordinance declares that if a controversy or dispute shall arise between a Divisional Chief and a Chief subordinate to him, the matter in issue shall be heard and determined before … the Paramount Chief’s Tribunal.
The defendant is a Divisional Chief-what is the plaintiff? He asserts that he is a Chief or at least the rightful successor to a Chief, viz., the Chief of Bomuapoley. The Chiefs List 1929 shows at page 90 that there is an Odikro of Bomuapoley. The Native Administration Ordinance Cap. 111 Schedule II as printed in Volume II and as printed as amended to 1st January, 1931, does not mention Bomuapoley.
Section 35 declares that the Court, i.e. the Provincial Commissioner’s Court, shall not have jurisdiction to entertain on appeal any civil cause or civil matter instituted for the trial of any question touching the political or constitutional relations subsisting according to Native Customary Law between a Divisional Chief and a Chief.
Section 43 (1) of the Native Administration Ordinance (as amended by section 12 of Ordinance No. 22 of 1929) gives civil jurisdiction to a Paramount Chief’s tribunal for the hearing and determination of the causes and matters thereinafter mentioned whether commenced by oath, writ of summons or other lawful means in which all parties are natives.
Subsection 2 of section 43 says the causes and matter hereinabove referred to are (a) (b) (c) (d) (e), which do not apply, and then-
“(f) suits relating to the ownership, possession or occupation of lands”; and
“(g) any other causes or matters by this Ordinance expressly assigned to a Paramount Chief’s Tribunal.”
There can be no doubt that the Paramount Chief’s Tribunal has jurisdiction to hear and determine both a suit under section 43 subsection 2 (f) and a cause or matter under section 43 subsection 2 (g). By section 43 subsection 1, these causes and matters may be commenced by writ of summons. The rules provide for all proceedings to be commenced by summons. I can find nothing in the Native Administration Ordinance or the regulations made thereunder which specifically or by inference precludes joinder of causes of action.
Certainly if there were in this case a distinct cause of action relating to the ownership of land and a distinct matter relating to a political or constitutional controversy, joinder of them owing to the different rights of appeals would render them difficult, perhaps, but not impossible to deal with. The Provincial Commissioner could not, therefore, declare the proceedings null and void on the ground of misjoinder. It may be difficult to say whether any particular proceeding brought on appeal to a Provincial Commissioner’s Court falls definitely within section 75 or section 35.
Section 75 says an appeal lies in any suit or matter relating to the ownership, etc. of land. Section 35 says the Court shall not entertain on appeal any civil cause or matter touching the political or constitutional relations subsisting according to Native Customary Law between a Divisional Chief and a Chief, so that if the Court is first of opinion that the appeal relates to a suit or matter relating to land, and then is of opinion that it touches the constitutional relations, it should not entertain the appeal.
The plaintiff claimed as Chief of Bomuapoley, and the matters in issue appear to me from the record to be concerned with the relations subsisting between himself and the Divisional Chief who is made defendant. At the end of the plaintiff evidence-in-chief on pages 29-30 of the record-fourth line, there is this passage:
“When the defendant’s motion was called the Provincial Commissioners ordered him to return to Atuabo for the decision of his case here and also that a constitutional case is only to be heard by the Paramount Chief’s Tribunal or by the State Council and we have come.”
His evidence was a recital of tradition and history, some of it recent history leading up to the present controversy and his final statement has not been contradicted.
The defendant opened his case by a similar recital and wound up by saying — page 61:
“I agreed and left the whole result to this litigation.”
The judgment of the Native Tribunal commences:
“This is a political action in which the plaintiff’s claim are the following”
and they set out the claim, review all the evidence, traditional and historical, of the statements of parties and their witnesses and the documents.
On page 99 the judgment goes on “we are satisfied that this action is a political dispute or controversy.”
They then summarise their findings in accordance with the terms of the summons and find the claim proved. Then on page 101 they express their judgment in these words:
“Now the claim being a political dispute, we therefore order as follows which are to be binding on both plaintiff and defendant their privy in blood and all the people in Akomu from to-day —
“1. That we raise the status of Chief Meenla Stool of Bomuapoley to be the senior Odikro according to plaintiff and defendant and according to Akomu history to carry the foot of Akomu as before.
2. That all the other Odikrofu of Akomu are to serve the Divisional Stool of Akomu through the Senior Ordikro Stool of the plaintiff.
3. That this Chief Meenla Stool of Bomuapoley is to serve the Paramount Stool of Eastern Nzima at all times and under all circumstances through the Divisional Stool of Nkroful.
4. That any lease for any land in Akomu must not after this judgment be executed independently by the plaintiff at any time, but must in all cases be executed with his Divisional Chief and vice versa which shall be a legal document and not otherwise.
5. That in executing any lease for land in Akomu in future some of the responsible elders, councillors and linguists must be present to witness the same being executed.
6. That the proceeds of all lands sold in Akomu or any Oman revenue must be divided into three equal parts, one share to be given to the defendant’s Stool as before. The two shares must also be divided and one share for the plaintiff’s stool of Bomuapoley and after this the remaining two parts must again be divided equally between Evonla quarter, Ebukolo Kyi quarter and Ejasi quarter respectively.”
According to the evidence before the Tribunal before the controversy arose, both Chiefs were exercising authority over the Akomu lands, and the proceeds of leases and concessions whether made by either Chief individually or jointly were normally divided into three parts; one part went to the defendant or his stool, two parts went in shares to the Evonla quarter, the Ebukolo Kvi quarter and the Ejasi quarter. The judgment still gives the defendant his one-third share. Therefore as regards his interest or the interest of his stool in the Akomu lands, he has lost nothing by this judgment which cannot, in my view, be regarded as a judgment transferring ownership from one party or his stool to another party or his stool, but can only be regarded as a judgment dealing with the management of, and the distribution of the revenues of communal lands and giving recognition to the plaintiff’s position as one of the managers thereof. The commonality of the three quarters have been deprived of a part of their former shares in this Oman revenue for the benefit of the plaintiff, but to what extent they in fact shared in the revenues is not clear from the evidence or the judgment.
In my view therefore it was apparent when the appeal was brought before the Provincial Commissioner’s Court that the proceedings instituted by the plaintiff had been instituted for the trial of a question relating to his position in the hierarchy of chiefs, that is, touching the constitutional relations subsisting according to native custom between himself and the Divisional Chief. Jurisdiction is expressly assigned to the Tribunal by section 34, and appeal cannot be entertained by the Court. The Provincial Commissioner had no jurisdiction to entertain the appeal. I desire expressly to guard against any word of my judgment being construed as an expression of opinion upon the merits of the case. I have nothing to say as whether the judgment of the Tribunal is good, bad or indifferent.
As in my opinion the Provincial Commissioner’s Court had no jurisdiction, this appeal must be allowed, the judgment of the Court below set aside, and the judgment of the Native Tribunal restored.
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MACQUARRIE, J.
This is an appeal against the judgment of the Court of the Provincial Commissioner of the Western Province on appeal from the Native Tribunal of the Paramount Chief of the Eastern Nzima State, by which judgment the proceedings in that Tribunal were held to be “null and void “and by inference the decision set aside.
The plaintiff’s claim which is made in his capacity as Chief of Bomuapoley is in two parts, firstly, that his ancestors are co-owners of certain lands with defendant’s ancestors, and secondly, that his ancestral Stool
“ranks second to the ancestral stool of defendant from the time of yore.”
The Tribunal, after a lengthy and apparently thorough hearing, gave a judgment which begins:
“This is a Political action in which the plaintiff’s claim are …”
Later on they say:
“We are satisfied that this action is a Political dispute or controversy.”
After fully discussing the evidence which is as to the relative positions of the parties in the hierarchy of chiefs, they proceed to pronounce judgment commencing as follows:-
“Now the claim being a political dispute we therefore order as follows …”
They divide their order into seven heads, the first three of which deal exclusively with the status of the plaintiff’s stool particularly in relation to that of defendant. The fourth and fifth heads give directions as to the manner in which in future leases of the lands in question are to be executed, while the sixth head directs how the ‘proceeds of the land’ and ‘any Oman revenue’ is to be shared between the two stools and certain named quarters.’
The seventh head deals with the costs of the action. The defendant obtained conditional leave to appeal to the Governor and later final leave, the appeal being expressed by the Tribunal to be to the Governor, “this being a political dispute’.”
Whether such formal leave was strictly necessary is irrelevant.
For some unexplained reason the appeal came to be heard by the Provincial Commissioner’s Court, in which Counsel appeared and on the defendant’s contention that there had been a “misjoinder” so called, the Provincial Commissioner held, as above stated, the proceedings null and void, on the ground that “two different causes of action have been merged into one suit and so disposed of by the Tribunal. One cause of action is a claim for ownership of land and the other is a claim for the declaration of rank, a constitutional issue.”
The plaintiff contended before us that the Provincial Commissioner had no jurisdiction to hear the appeal. This contention was fully argued, and the conclusion I have come to is that the action is no more than “a dispute of a political or constitutional character” and that the appeal is, by section 34 of the Native Administration Ordinance, to the Governor. If the claim be examined as to its real nature, it seems to me to be essentially one of the relative status of the parties according to Native Customary Law and the judgment only directly affects their relative states.
The contest about land may be affected indirectly by the decision, a result probably unavoidable in a large proportion of disputes of this nature, but this in itself is not sufficient to change the real nature of the dispute. The statements of the Tribunal above quoted would not be conclusive as to the nature of the dispute, but they are a relevant element to be considered.
The original appeal then should have been to the Governor, and I am of opinion that this appeal succeeds on that ground. In my opinion, therefore, the Provincial Commissioner’s judgment should be set aside with costs, and the matter referred back to the stage where final leave to appeal to Governor was obtained.
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MICHELIN, J.
This appeal is allowed with costs assessed at £62 3s.
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