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ARCHIE KWOW
V.
OHENE ESSIEN EKU II
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, OLD GOLD COAST (GHANA)
20TH DAY OF NOVEMBER, 1934
2PLR/1934/7 (WACA)
OTHER CITATION(S)
2PLR/1934/7 (WACA)
(1934) II WACA PP. 180-181
LEX (1934) – II WACA PP. 180-181
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BEFORE THEIR LORDSHIP(S):
KINGDON, C.J., NIGERIA
YATES, ACTING C.J., GOLD COAST
GRAHAM PAUL, J.
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BETWEEN:
ARCHIE KWOW — Plaintiff-Respondent
AND
OHENE ESSIEN EKU II — Defendant-Appellant
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ORIGINATING COURT(S)
APPEAL FROM THE COURT OF PROVINCIAL COMMISSIONER
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REPRESENTATION
R. S. BLAY — for Appellant
F. AWOONOR WILLIAMS — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND — RENT:- Suit relating to ownership of land — What constitutes — Where the real issue between the parties was whether the plaintiff was entitled to a share of the rent of certain land in respect of his ownership of it — Proper treatment of
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeal from Native Tribunal under section 75 of the Native Administration Ordinance (Cap. 111) to the Court of the Provincial Commissioner lies — Where case was a “Suit or matter relating to the Ownership, possession or occupation of any land” — Claim to share in rent of land — Competency of
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CASE SUMMARY
The appeal arose from a decision of the Native Tribunal under section 75 of the Native Administration Ordinance (Cap. 111) to the Court of the Provincial Commissioner and related to disputed claims to rent. The issue was whether the matter related to ownership of land so as to make the appeal competent.
The Court held that the claim came within section 76 and that the Provincial Commissioner was wrong in holding that the case was a money count action and thereby dismissing the appeal on that ground.
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MAIN JUDGMENT
KINGDON, C.J., NIGERIA [DELIVERING THE LEAD JUDGMENT]
The short point in this case is whether the case before the Native Tribunal was a “suit or matter relating to the ownership, possession or occupation of any land” so that an appeal would lie from the decision to the Provincial Commissioner Court under section 75 of the Native Administration Ordinance (Cap. 111).
In cases such as this the real issue between the parties must be the test and not merely the wording of the suit. An examination of the record in this case shows that the real issue between the parties was whether the plaintiff was entitled to a two-thirds share (as he claimed) or only to a one-third share (as defendant contended) of the rent of certain land in respect of his ownership of it.
It is clear to me that this question is a matter relating to the ownership of land, though in form the suit is not one to establish ownership or claim to title. I am of opinion therefore that an appeal from the decision of the Native Tribunal did lie to the Provincial Commissioner’s Court, and that the Provincial Commissioner was wrong in holding that the case was a money count action and in dismissing the appeal to him on that ground. I am of opinion that this appeal should be allowed and the case remitted to the Provincial Commissioner’s Court to be heard and decided upon its merits, and that the appellant should be awarded costs in this Court and the costs up to date in the Provincial Commissioner’s Court.
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YATES, ACTING C.J., GOLD COAST.
I concur.
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GRAHAM PAUL, J.
I concur.
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KINGDOM, PRESIDING JUDGE.
The appeal is allowed and the case is remitted to the Provincial Commissioner’s Court to be heard and decided upon its merits. The appellant is awarded costs in this Court assessed it £36 2s. and costs in the Provincial Commissioner’s Court up to date to be taxed.
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