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S. E. AKROBOTU
V.
AMETAME NORMESHIE AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
13TH DAY OF MARCH, 1953
2PLR/1953/17 (WACA)
OTHER CITATION(S)
2PLR/1953/17 (WACA)
(1953) XIV WACA PP. 290 – 291
LEX (1953) – XIV WACA 290 – 291
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BEFORR THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
KORSAH, J.
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BETWEEN
S. E. AKROBOTU – Appellant
AND
1. AMETAME NORMESHIE
2. FLO LEVE
3. KOFI GBOGBOGA,
4. KLU TORGBOR FOR HIMSELF AND ON BEHALF OF TITILI FAMILY OF STROGBOE – Respondents
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REPRESENTATION
N. A. Ollennu — for Appellant
K. Adumua-Bossman — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LAND:- Native Courts – Jurisdiction – Land under Vui-Native Court “B” of Keta Native Courts (Colony) Ordinance, 1944, section 3 and section 14 (1)
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CASE SUMMARY
Appeal by the plaintiff: No. 119/49
Under the above section 3 “The Governor in Council may by order provide for the constitution of Native Courts which shall exercise jurisdiction in accordance with this Ordinance within such area as may be defined in the order” etc.; and under section 14(1) “All land causes shall be tried and determined by a Native Court having jurisdiction over the area in which the land which is the subject-matter of the dispute is situated”.
The plaintiff (appellant above) sued in the Native Court “B” of Keta in respect of land in Vui; on appeal the judgment was set aside by the Native Court of Appeal on the ground that Vui was not within the jurisdiction of the trial Court, and this was upheld in the Land Court, from which there was this further appeal. There being no evidence on the record, the Court of Appeal remitted the case to the Land Court to take certain evidence, which turned out against the trial Court having jurisdiction over cases arising in Vui.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
1. The jurisdiction of a Native Court depends on statute and the burden of proof is upon the party who asserts the jurisdiction.
2. There the evidence was unanimous that the trial Court had no jurisdiction in the case.
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MAIN JUDGMENT
The following Judgment was delivered:
KORSAK, J.
This suit was instituted in the Native Court “B” of Keta which gave judgment in favour of the plaintiff against the three original defendants, but in favour of the co-defendant against the plaintiff. The three original defendants appealed from the said judgment, and the plaintiff also appealed in respect of the portion of the said judgment in favour of the co-defendant, to the Native Appeal Court, which allowed both appeals, on the ground that “the Native Court ‘B’ of Keta had no jurisdiction to entertain the suit; Vui where the land, subject-matter of dispute is situated, is not within the jurisdiction of the said Native Court ‘B’”.
On appeal to the Land Court, the decision of the Native Appeal Court was upheld and the appeal was therefore dismissed. This appeal is therefore solely on the question whether the said Native Court “B” has jurisdiction in the matter.
The appeal first came before this Court in February, 1952, when it was held that in view of the fact that the jurisdiction of the Court of first instance has been challenged, the issue raised thereby is of importance to the appeal, but as there was no evidence on record which proves that the said Court has jurisdiction to adjudicate in suits in respect of land situate within Vui area, the appeal should be remitted to the Land Court with the following directions:-
“That evidence of District Commissioner of Keta, and the Awudada of Anlo State or other accredited representative of the said State duly appointed by the State Council, be taken and transmitted to this Court.”
In compliance with the above directions, Jackson, J., presiding at the Land Court on 6th May, 1952, took evidence of William James Caldow, Assistant District Commissioner in charge of Keta, and the Awudada of Anlo. The Assistant District Commissioner of Keta produced and tendered in evidence exhibit “1” which contained a declaration made by the “President of the Native Authority with Chiefs and elders concerned” which after reciting certain traditional matters in connection with the origin of “Vui Land” finally stated:-
“This, in fact, was the reason why in the recent suggestion by the Native Authority for the panelling of Native Courts, Gborgblorda, Chief-elect of Vui, was empanelled for the Anlo Division (East) ‘ B Court, that is, the Anloga Native Court’ B ‘.”
The Awudada also stated that “It was agreed by the State Council that cases arising in Vui should be heard in the Anloga Native Court (B Grade)”. After the evidence of the two witnesses, the learned Judge made an order on the same day, that is 6th May, 1952, as follows:
“I do direct that a copy of these minutes be transmitted forthwith to the President of the West African Court of Appeal”.
It would appear, however, that on 25th August, 1952, the same parties appeared before the Land Court when Gabriel Kwaku Quashie, Secretary of Anlo State Council, and Carl Senagetey Dey, Secretary of the Anlo Native Authority, also gave evidence. I do not know by what authority the subsequent evidence was taken after the minutes of 6th May, 1952, had been transmitted to the West African Court of Appeal. In any event, the evidence in the subsequent hearing did not controvert the conclusion reached by the President, Chiefs and Elders of the State as contained in exhibit “1”.
Prior to the coming into operation of the Native Courts (Colony) Ordinance, 1944, the Native Tribunals of the Chiefs exercised what was acknowledged by the Native Administration Ordinance, 1927, to be the inherent jurisdiction of the Chiefs, merely regulated by that Ordinance. But now by section 3 of the Native Courts (Colony) Ordinance, 1944, it is provided that:-
“The Governor in Council may by order provide for the constitution of Native Courts which shall exercise jurisdiction in accordance with this Ordinance within such area as may be defined in the order” etc.
And by section 14 (1) of the said Ordinance, it is provided:-
“All land causes shall be tried and determined by a Native Court having jurisdiction over the area in which the land which is the subject-matter of the dispute is situated “.
It follows that jurisdiction of Native Courts now having been conferred by Statute, the burden of proof, whether a particular Native Court can exercise jurisdiction in matter before it, is upon the party who asserts the jurisdiction. In this matter evidence adduced supports the contention of the Native Appeal Court, that Native Court “B” of Keta has no jurisdiction. There is no evidence to the contrary. The effect of this is that the proceedings and judgment of the Native Court “B” of Keta are a nullity. I am therefore of the opinion that this appeal should be dismissed.
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FOSTER-SUTTON, P.
I concur.
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COUSSEY, J.A.
I concur.
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Appeal dismissed.