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DANIEL AMOKU
V.
YAW DURO
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
5TH DAY OF FEBRUARY, 1953
2PLR/1953/16 (WACA)
OTHER CITATION(S)
2PLR/1953/16 (WACA)
(1953) XIV WACA PP. 257 – 259
LEX (1953) – XIV WACA 257 – 259
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BEFORE THEIR LORDSHIP:
FOSTER-SUTTON, P.
COUSSEY, J.A.
KORSAH, J.
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BETWEEN:
DANIEL AMOKU ALIAS KWAMIN EGYIR OF AYANMAIN, NOW AT AYAN DENCHIRA – Appellant
AND
YAW DURO (SUBSTITUTED FOR ISAAC CHARLES MORRISON) FOR HIMSELF AS HEAD AND ON BEHALF OF THE OTHER MEMBERS OF DIBYINA PARAMOUNT STOOL FAMILY OF AYAN DENCHIRA – Respondent
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ORIGINATING COURT(S)
Appeal by the defendant: No. 53/52.
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REPRESENTATION
E. Akufo Addo — for Appellant
C. F. Hayfron-Benjamin — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Suit in the Native Court “A” claiming for a declaration of title to land – Averment that land was Paramount Stool family land – How treated
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Native Courts – Appeal to Land Court – Power to re-hear on appeal not exercisable after judgment set aside – Native Courts Colony Ordinance, 1944, section 50.
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CASE SUMMARY
So far as relevant the above section provides that “when sitting in its appellate capacity … the Land Court may … re-hear the cause in whole or in part and may admit such further evidence as it sees fit and may reverse, vary or confirm the decision of the Court from which the appeal is taken and may make such other order as it shall consider the justice of the case requires”.
After judgment in plaintiff’s favour the defendant appealed from the Native Court to the Land Court, where the Judge directed that the action be set down for re-hearing and also set aside the judgment of the Native Court. Later pleadings were ordered and later still the suit was heard de novo, and judgment was again given for the plaintiff. The defendant now appealed to the West African Court of Appeal arguing that as the judgment of the Native Court had been set aside the re-trial was null and void. For the plaintiff it was argued that the order for a re-hearing was made by a competent Court and stood until it was set aside, and that the defendant having carried on under it had waived the irregularity in procedure.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
This was not an error in procedure but a defect in jurisdiction appearing on the record: for the jurisdiction of the Land Court was derived from section 50 of the Native Courts (Colony) Ordinance, under which the Land Court had no legal authority, having set aside the judgment of the Native Court, to hear evidence in the suit.
Cases cited:-
(1) Sosu Avulete v. Dogbe Abortsi, W.A.C.A., 31st January, 1949.
(2) Kwabena Yeboah, Kyidomhene of Dormaa, etc. v. Chief Kofi Taibul, W.A.C.A., 17th March, 1952.
(3) In re Padstow Total Loss and Collision Assurance Association, 20 Ch. D. 137.
(4) Attorney-General v. Hotham, 38 E.R. 631.
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MAIN JUDGMENT
The following judgment was delivered:
COUSSEY, J.A.
This suit originated in the Native Court “A” of Nkwantanum, Ayan-Na Breman Confederacy, and was a claim for a declaration of title to land known as Kojo Appu which the plaintiff averred was owned by the Paramount Stool family of Ayan Denchira. Judgment was delivered in the plaintiff’s favour by the Native Court on the 16th April, 1947, and from that judgment the defendant appealed to the Land Court.
On the appeal being heard Lingley, Ag. J., on the 16th July, 1949, held that the Native Court should have required the plaintiff himself to give evidence and should not have accepted instead the evidence of the plaintiff’s representative, as it did. He thereupon directed that the action be set down for re-hearing in the Land Court and concluded:” The judgment of the Native Court is therefore set aside with costs assessed at 30 guineas to abide the result of the new trial.” On the 23rd July, 1949, counsel for the parties attending, the Court ordered pleadings, which were filed and served.
The Land Court proceeded to hear the suit de novo on the 8th December, 1950, and, after evidence had been led for the plaintiff and for the defendant, Van Lare, Ag. J, delivered judgment on the 27th December in favour of the plaintiff with costs. From that judgment the defendant has appealed to this Court.
The first ground of appeal and the one to which Mr. Akufo Addo for the defendant-appellant has addressed himself is that the order of Lingley, Ag. J., dated the 16th July, 1949, setting aside the judgment of the Native Court and ordering a re-trial by the Land Court was wrong in law (vide section 50 of the Native Courts Ordinance, 1944), and the re-trial by Van Lare, Ag. J., was therefore null and void, because the judgment appealed from having been set aside by Lingley, Ag. J., there was nothing left before the Land Court upon which Van Lare, Ag. J., could properly proceed with the re-trial as required by section 50 of the Native Courts Ordinance.
Mr. Akufo Addo cited two decisions of this Court in support of his submission, namely, Sosu Avulete v. Dogbe Abortsi (1) and Kwabena Yeboah, Kyidomkene of Dormaa, etc. v. Chief Kofi Taibill (2). The decision in Sosu Avulete v. Dogbe Abortsi (1) was applied in the latter case and it is to the effect that under section 50 of the Native Courts Ordinance” The Land Court on an appeal may re-hear the “cause if it chooses to do so, and may either reverse, vary or confirm the decision” of the Court below. But if it were obliged to set aside the judgment of the Court “below the exercise of these powers would be stultified. It would not be practicable “to re-hear the cause in part for that would leave the remainder of the case” unheard. Nor would it be possible for the Land Court to vary or confirm a “decision of the Court below which had already been set aside for that decision” would have ceased to exist. For the same reason it could not reverse it”. This decision is directly applicable to the present case.
If it was the intention of the Land Court to take further evidence in the appeal, it fell into an error in setting aside the judgment of the Native Court as it did. But counsel for the parties contributed to the error by filing pleadings and calling witnesses in the Land Court as if that Court were hearing and determining the suit at a time when, in fact, the Court had become functus officio by setting aside the judgment appealed from, the effect of which was to restore the parties to the Native Court for a trial de novo upon the writ of summons in the suit.
Mr. Benjamin for the plaintiff-respondent, while recognising the force of the appellant’s submission, has cited In re Padstow Total Loss and Collisions Assurance Association (3) and argued that, as the order of Lingley, Ag. J., to take evidence was made by a superior Court, it was a good order, as being made by a competent Court, to regularise the subsequent proceedings before Van Lare, Ag. J., unless and until that order was set aside on appeal, and that in this case the defendant-appellant by taking a step in the Land Court after the order and, in fact, continuing up to final determination of the suit to take part in the proceedings, must be held to have waived any irregularity in procedure.
I have considerable sympathy for the plaintiff-respondent who has now had two judgments favourable to him in this suit, but the case referred to by Mr. Benjamin does not, in my opinion, support his submission that the proceedings before Van Lare, Ag. J, are regularised by the erroneous order of Lingley, Ag. J, simply because that order was not set aside.
There is, it is true, a distinction between jurisdiction and error in the exercise of jurisdiction. In the Attorney-General v. Hotham (4) it was held that if a limited tribunal exercises a jurisdiction which does not belong to it, its decision amounts to nothing and does not create the necessity for an appeal.
It was held on the other hand in Padstow Total Loss and Collision Assurance Association (3) that if a superior Court, acting in assumed exercise of a jurisdiction belonging to it, makes an order which, under the particular circumstances of the case, is beyond that jurisdiction, the order, until it be discharged, can be treated as a subsisting order and can only be discharged on appeal. But here we are concerned with something more than an error in procedure, and in my view the defendant-appellant is not precluded from raising on appeal a defect in jurisdiction appearing on the record. The point is that the Land Court had no legal authority, having set aside the judgment of the Native Court, to proceed to hear evidence in the suit because by setting aside the judgment its authority over the suit had gone and no waiver or consent of the parties could create jurisdiction where it had ceased to exist. The general principle is that whenever jurisdiction is given to a Court by an enactment (in this case section 50 of the Native Courts (Colony) Ordinance) and such jurisdiction is only given on specified terms or conditions contained in the section itself, those conditions must be complied with in order to create and raise the jurisdiction, for if they are not complied with the jurisdiction does not arise.
The appeal must therefore be allowed and the judgment of the Land Court dated 27th December, 1950, set aside.
As observed earlier, I consider the parties equally at fault in suffering the proceedings to continue before Van Lare, Ag. J., in December, 1950. The decision in Sosu Avulete v. Dogbe Abortsi (1) had been given by the Court of Appeal on the 31st January, 1950.
In all the circumstances, I would order that each party pays his own costs in this Court and of the abortive hearing in the Land Court before Van Lare, Ag. J. The order for costs made by Lingley, Ag. J., on the 16th July, 1949, is not affected but it will abide the result of the new trial by the Native Court, where the suit now rests for hearing. It should be clear to the Native Court that the defendant-appellant’s appeal to this Court has been upheld on a technicality only and that the merits of the case are not affected by this decision.
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FOSTER-SUTTON, P.
I concur.
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KORSAH, J.
I concur.
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Appeal allowed.
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