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KWAKU ADDAI
V.
NANA AMA SERWAH BANKUO
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
5TH DAY OF JANUARY, 1953
2PLR/1953/20 (WACA)
OTHER CITATION(S)
2PLR/1953/20 (WACA)
(1953) XIV WACA PP. 240-241
LEX (1953) – XIV WACA 240-241
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J. A.
KORSAK, J.
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BETWEEN:
KWAKU ADDAI OF ASOKORI-MAMPONG, SUCCESSOR ACCORDING TO NATIVE CUSTOMARY LAW OF KWAME
WUSU DECEASED – Appellant
AND
NANA AMA SERWAH BANKUO, OF 0.0.38, ASHANTI NEW TOWN, KUMASI – Respondent
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ORIGINATING COURT(S)
Appeal in a civil case by plaintiff: No. 32/52.
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REPRESENTATION
K. Adumua-Bossman — for Appellant
J. B. Siriboe — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Suit between natives – Land held under tenure – Pledge under Native Custom – Native Courts (Ashanti) Ordinance (Cap. 80), section 35 – Courts Ordinance (Cap. 4), section 17 – Jurisdiction of Supreme Court thereto
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CASE SUMMARY
Appellant (plaintiff below) sued in the Supreme Court to recover possession of some rooms which had been pledged to respondent and which he claimed to redeem; the respondent alleged that the deceased owner later transferred them to him outright. The appellant lost and in his appeal argued that in view of section 35 of the Native Courts (Ashanti) Ordinance (Cap. 80), the Supreme Court should have stopped the suit as being outside its jurisdiction, and referred also to section 17 of the Courts -Ordinance (Cap. 4). The parties were natives, the Land was held under native tenure, and the original pledge was made on the footing of native custom.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal) that:
It was not a proper cause for the Supreme Court to exercise jurisdiction over, consequently the suit was not properly tried there.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J.A.
The plaintiff-appellant brought this action as successor of his brother by native customary law in the Supreme Court (Land Division), Kumasi, for the recovery of possession of seven rooms in a house situate in Kumasi. He alleged that the property was pledged by his deceased brother to the defendant and he claimed to redeem the property.
The defendant admitted the pledge but alleged that the deceased Kwame Wusu had later, by a deed of assignment, transferred his interest in the property outright to the defendant.
The action was tried in the Supreme Court and judgment went against the appellant. The appellant has appealed to this Court and submits as an additional ground of appeal, having abandoned the original grounds of appeal filed, that the suit was one between natives relating to the ownership or possession of a house and within the competence of the Asantehene’s “B” Court, and that the jurisdiction of the Land Court was expressly ousted by the provisions of section 35 of the Native Courts (Ashanti) Ordinance (Cap. 80) which provides that the Land Court shall stop the progress of a suit and refer the parties to a competent Native Court if it appears that the matter is properly cognisable by a Native Court. Section 17 of the Courts Ordinance (Cap. 4) has also been referred to, paragraph (b) of which provides that the Supreme Court shall not exercise jurisdiction:-
“(b) in Ashanti in any civil cause or matter . . . ” which is subject to the provisions of section 35 of the Native Courts. (Ashanti) Ordinance save and except in accordance with the proviso to such section.
It has been submitted that in this suit as the parties are natives and the land is held by native tenure, the existence of documents, namely, a lease and a deed of assignment, is not sufficient to oust the jurisdiction of the Native Court and to empower the Supreme Court to exercise its jurisdiction. The objection was not raised at the trial and it is now pleaded in this Court by the party who lodged the suit. But it goes to jurisdiction. It seems to me that it is not open to the respondent to contend, as he has done, that the learned trial Judge would have retained the suit if this question had been raised before him. Clearly, the parties being natives, it would have to be shown that they expressly or by implication agreed that their obligation should be regulated by some law other than native customary law. But here the action is by the successor of Kwame Wusu to attack the transaction by virtue of which the defendant claimed title.
As the original transaction of pledge which preceded the assignment of the property was clearly made on the footing of native custom, it was not a proper cause for the Court to exercise jurisdiction over and, consequently, the suit was not properly tried in the Supreme Court. I have no doubt that the learned trial Judge would have so held if the matter had been raised before him.
I would, therefore, allow this appeal and set aside the judgment of the Court below. The learned President will give directions as to costs, as the plaintiff, after selecting the wrong forum, raised this point on appeal to avoid a judgment against himself.
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FOSTER-SUTTON, P.
I concur.
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KORSAK, J.
I concur.
Order: Appeal allowed (but only on the ground that the Court below had no jurisdiction to try the case, the parties being natives and the land being held under native tenure).
Judgment of Court below is set aside; defendant-respondent to have her costs in the Court below to be taxed as between solicitor and client and costs on this appeal fixed at £18 15s. 0d.
Appeal allowed.