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AKOSUA ADEI
V.
S. C. MENSAH AND KYEAMEKOFI PONG
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
28TH DAY OF JUNE, 1943
2PLR/1943/12 (WACA)
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OTHER CITATION(S)
2PLR/1943/12 (WACA)
(1943) IX WACA PP. 158 – 160
LEX (1943) – WACA PP. 158 – 160
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BEFORE THEIR LORDSHIPS
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
AKOSUA ADEI — Plaintiff-Respondent-Respondent-Appellant
AND
S. C. MENSAH AND KYEAMEKOFI PONG — Defendant-Judgment-Debtors
KWADJO TWENEBOA — Claimant-Appellant-Appellant-Respondents
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REPRESENTATION
A. O. Larbi — for Plaintiff-Respondent-Appellant
Akufo Addo — for Claimant-Appellant-Appellant-Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
DEBTOR AND CREDITOR LAW — INTERPLEADER ACTION:- Interpleader summons calling on the appellant to show cause why certain land had been advertised for sale by a decree of a Native Tribunal made at the instance of the appellant in execution of a judgment debt due her, the land being family property — Jurisdiction of court thereto — Legal effect
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PRACTICE AND PROCEDURE ISSUE(S)
COURT:- Native Tribunal — Territorial jurisdiction of Divisional Chief’s Tribunal — Native Administration (Colony) Ordinance (Cap. 76) (Gold Coast), section 49(1)
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CASE SUMMARY
The respondent caused to issue in the Tribunal of a Divisional Chief, the Ayokohene of Koforidua, New Juaben, an interpleader summons calling on the appellant to show cause why certain land had been advertised for sale by a decree of the Tribunal made at the instance of the appellant in execution of a judgment debt due her, the land being family property. The land was situated at Oyoko, and the debt had been contracted there. The Ayokohene’s Tribunal gave judgment in favour of the appellant and the respondent appealed to a higher Tribunal which dismissed the appeal on the merits. The respondent then appealed to the Provincial Commissioner’s Court, where for the first time he set up the case that the original suit was not within the territorial jurisdiction of the Ayokohene’s Tribunal, but within that of the Ohene of Oyoko. Both these Tribunals were in the Oyase Division.
On this ground the Provincial Commissioner’s Court allowed the appeal.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held, that the Ayokohene’s Tribunal had jurisdiction throughout the Oyaso Division by virtue of the words within the Division in section 49(1) of the Native Administration (Colony) Ordinance.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE (READ BY THE PRESIDENT)
Kwadjo Tweneboa, the claimant-appellant-appellant-Respondent (hereinafter called the respondent) caused to issue in the Tribunal of Ayokohene, New Juaben an interpleader summons calling upon Akua Adai or Akosua Adei, plaintiff-respondent-respondent-appellant, the judgment-creditor (hereinafter called the appellant) to show cause why the land with cocoa farm thereon situate, lying and being at Antwafiri near Oyoko which has by a decree of the Tribunal at the instance of the said Akua Adai been advertised for sale for the execution of the debt due her by the judgment-debtors while it is a family property.
The Tribunal gave judgment in favour of the appellant and ordered the disputed-farm to be sold. Against that judgment the respondent appealed to the Tribunal of the Omanhene of New Juaben, which heard the appeal on its merits and dismissed it. Thereupon the respondent appealed further to the Court of the Provincial Commissioner, Eastern Province, in which he raised for the first time the question of the jurisdiction of the Tribunal of Ayokohene over the suit, contending in grounds 1 and 2 of his supplementary grounds of appeal-
“1. That the land in dispute is situated in Oyoko in the New Juaben District and the amounts on the writ £12 was borrowed at Oyoko and the necessary document (Promissory Note) was also prepared at Oyoko (£12) amount claimed is within the jurisdiction of the Tribunal of Ohene of Oyoko, New Juaben.
“2. That the Ayokohene’s Tribunal, Koforidua has no jurisdiction to have tried this case and therefore the whole proceedings before it are vitiated for want of jurisdiction as where there is no jurisdiction proceedings are void.”
The Acting Deputy Provincial Commissioner, Eastern Province, who constituted the Court, allowed the appeal and ordered both parties to pay their own costs. He held the loan was raised at Oyoko. The land in dispute is lying and situated at Oyoko, a village five and a half miles away from Koforidua; the Chief of this town has a Tribunal under Schedule 2 Part ‘B’ of the Native Administration Ordinance with competent jurisdiction to hear this case. The Ayokohene is one of the Divisional Chiefs in the Koforidua town and his jurisdiction does not extend to Oyoko.
“The defendant-respondent admits that the land in dispute is lying at the village of Oyoko. Question of jurisdiction can be raised at any stage of the proceedings. This being so, the proceedings before the Ayokohene and Omanhene’s Tribunal are a nullity. The Omanhene should have acted under section 74 of the Native Administration Ordinance when the question of jurisdiction arose.”
Against that decision the appellant has appealed to this Court. The jurisdiction of a Divisional Chief’s Tribunal is derived from section 49 of the Native, Administration (Colony) Ordinance (Cap. 76) the relevant parts of which read as follows:-
“(1) A Divisional Chief’s Tribunal shall have and may exercise within the Division of such Divisional Chief civil jurisdiction for the hearing and determination of the causes and matters hereinafter mentioned in which all parties are natives and the defendant was at the time when the cause of action arose within such Division, or in which any party not “a native consents in writing to his case being tried by such” Divisional Chief’s Tribunal.
‘(2) The causes and matters hereinabove in this section referred to are the following:-
“(c) So far as is sanctioned by native customary law, suits relating to the ownership, possession, or occupation of lands situated within the Division.”
In section 2 of that Ordinance “Tribunal” is defined to mean and include “a Divisional Chief’s Tribunal formed by the Divisional Chief or his representative sitting with his Chiefs, Headmen, Linguists, and Councillors (or some of them) in accordance with native customary law”. And “Divisional Chief” is defined to mean and include Ohene (Ohin), Opakanni, ·Manche, Wetso Manche, Fio, Dufia, Odefe, Awadada, Tronua and Asafohenega; being a person elected and installed in accordance with native customary law, and subordinate directly to a Paramount Chief or to a Paramount Chief through another Divisional Chief of the State; and being also the holder of a position included in Parts A or B of Schedule 2.”
Reference to Schedule 2 shows that included in Part A is the following:-
“State Division Headquarters Position
“New Juaben Gyase Koforidua Ayekohene
and in Part B:-
“State Division Headquarters Position
“New Juaben Gyase Oyoko Ohene
It follows from this that the Tribunal of the Ayokohene has jurisdiction throughout the Gyase Division; the territorial limit is fixed by the words within the Division in section 49(1) already quoted; Counsel for the respondent was unable to point to any other territorial restriction or to show any authority for the territorial limitation placed upon the jurisdiction of the Tribunal of the Ayokohene by the Provincial Commissioner’s Court. It may be, and indeed it appears to be the case, that the Tribunal of the Oyokohene has concurrent jurisdiction throughout the Division; and if this is not the intention it is a matter which should receive the attention of the legislation.
For these reasons the appeal is allowed, the judgment of the Provincial Commissioner’s Court, including the order as to costs, is set aside, and the case is remitted to the Provincial Commissioner’s Court for the appeal of the respondent to that Court to be heard upon the original grounds of appeal filed in that Court. The appellant is awarded costs in this Court assessed at £31 10s 0d and costs of the appeal proceedings up to date in the Provincial Commissioner’s Court to be taxed. The costs of future proceedings in the Provincial Commissioner’s Court will be in the discretion of that Court at the further hearing of the appeal.
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