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JAMES NUDO KWAKUVIE AND ANOTHER, ETC.
V.
KARTEY ADABAAR, ETC.
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA
3RD DAY OF DECEMBER, 1942
2PLR/1942/3 (WACA)
OTHER CITATION(S)
2PLR/1942/3 (WACA)
(1942) XIII WACA PP. 184 – 186
LEX (1942) – WACA PP. 184 – 186
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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:
1. JAMES NUDO KWAKUVIE
2. GODJO DOGBE-ZAH
[ON BEHALF OF THEMSELVES AND ALL OTHER MEMBERS OF THEIR FAMILY OF WHICH ASAFOHENE GBADAWHU AND DOGBE-ZAA ARE THE HEADS OF ADUTOR-AGAVE] — Plaintiffs-Respondents
AND
KARTEY ADABAAR ON BEHALF OF HIMSELF AND AS REPRESENTING THE ADABAAR FAMILY OF ADA — Defendant-Appellant
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ORIGINATING COURT(S)
NATIVE TRIBUNAL
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REPRESENTATION
E. C. Quist with K. A. Bossman — for Appellant
C. S. Acolatse — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
PRACTICE AND PROCEDURE ISSUE(S)
Judgment delivered by Native Tribunal — Order made under section 75 (1) of Native Administration Ordinance after judgment.
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CASE SUMMARY
On the 16th March, 1938, the Native Tribunal of Agave gave judgment for the plaintiff.
On the 10th May, 1938, the Provincial Commissioner, Eastern Province, made an order under section 75(1) of the Native Administration Ordinance transferring the action to the Divisional Court, Accra, for hearing and determination. There was no appeal against this order.
At the trial plaintiffs’ counsel pleaded that the Commissioner’s order was “ultra vires” section 75(1).
The Judge overruled this contention but said he would bear evidence as to the existence of a subsisting judgment between the parties in relation to a plea of “res judicata” raised by the defendant.
After hearing this evidence the Judge upheld the plea of res judicata and held there was no case before him. Against this decision the defendant appealed.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held: Appeal dismissed.
Power of transfer given by section 75(1) of the Native Administration Ordinance ceases to exist after a final judgment has been delivered. There was no case before the Judge, and the action should have been dismissed on that ground, and that the order made under section 75(1) was “ultra vires.”
Case referred to:-
Akese v. Fatumo 2 W.A.C. 353.
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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.
By writ of the 11th January, 1937, issued in the Native Tribunal of Agave the plaintiff claimed certain creeks and the surrounding land.
After many sittings and adjournments, at none of which the defendant was present, the Tribunal, on the 16th March, 1938, gave judgment for the plaintiff.
By Notice of Motion dated the 2nd March, 1938, Dorsoo Amenyah applied to the Provincial Commissioner’s Court of the C.JJ. Eastern Province on behalf of the defendant for an order to stop the Tribunal from proceeding with the hearing of the suit and to transfer it to the Divisional Court, Accra. It would appear that notice of this motion did not reach the Tribunal or the plaintiff until after the Tribunal had delivered judgment. Dorsoo Amenyah filed an affidavit in support of his Notice of Motion: the defendant filed a counter affidavit in which he alleged that the action before the Tribunal had been determined before service of Notice of Motion on him. At the hearing of the Motion the Provincial Commissioner’s Court, Eastern Province, without apparently considering whether a valid judgment had already been delivered by the Tribunal, ordered ” that the case before the Tribunal of Agave be stopped and be transferred to the Divisional Court, Accra, for hearing and determination.” There was no appeal from this order.
In the Supreme Court pleadings were ordered and filed. In paragraph 15 of their amended Statement of Claim the plaintiffs pleaded:-
“The plaintiff finally plead that the Provincial Commissioner has no jurisdiction to transfer the above-named case to this Court for hearing and determination in that at the date of the order of the Provincial Commissioner viz. 10th May, 1938, purporting to transfer this case, there was no cause or matter as above, pending for hearing, ” within the meaning and interpretation of section 75 of the Native ” Administration Ordinance, Cap. 76.”
At the trial plaintiffs’ counsel took the preliminary objection that judgment having already been given by the Tribunal before the transfer was made, there was nothing before the Court. The Court could transfer nothing and the judgment stood until reversed.
Defendant’s counsel on the other hand contended that the Provincial Commissioner’s Court having transferred the case the Divisional Court was- bound to hear the case as the order had not been appealed against.
The Divisional Court overruled the objection of plaintiffs’ counsel and the trial proceeded. Defendant’s counsel then stated that he relied on the pleadings and raised the plea of res judicata and contended that the Court could not hear the case afresh.
Defendant’s counsel submitted that there was no subsisting judgment between the parties that was binding and the Court should therefore hear the transferred action.
The trial judge intimated that he would hear evidence as to whether there was a subsisting judgment. After hearing evidence the trial judge upheld the plea of res judicata and held there was no case before him. He stated that he would give his reasons in writing. In these reasons he disposed of defendant’s contention that he was not amenable to the jurisdiction of the Tribunal because he had not been served with the summons as he came to the conclusion that defendant had been served with the writ. It is perhaps worth pointing out that after the case had been adjourned by the Tribunal, sine die on the 5th March, 1937, owing to defendant’s absence, a fresh hearing date, viz: 7th March, 1938, was fixed and that defendant’s representative, J. D. Amenyah, had notice of this. (See paragraph 2 of his affidavit dated 2nd March, 1938). It was only on this hearing day, 7th March, 1938, when there was still no appearance by or for the defendant that the Tribunal finally decided to hear the case in his absence.
From the judgment of the Divisional Court the defendant has appealed on a number of grounds which it is not necessary to set out.
The power given by the Native Administration Ordinance section 75(1) to a Provincial Commissioner’s Court to stop the hearing of any civil or criminal cause, matter or question commenced or brought before any tribunal and to order that any such civil or criminal cause, matter or question shall be heard by another tribunal or a Court applies, in our opinion, only to an existing cause, matter or question and not to one in which judgment has been delivered and there remains nothing to be done to complete the judgment to transfer a cause after judgment given, as in this case, has no effect as no re-hearing can be implied, the proceedings having terminated. A similar decision was given by this Court in the case of Akese v. Fatumo 2 W.A.C.A. 353 in Nigeria.
In our opinion it was the duty of the trial judge, once he had come to the conclusion that judgment had been given in this-action, to hold that the transfer was of no effect and to dismiss the action.
The learned trial judge was, in our opinion, right in holding, as he did, that there was no case before him. Having so held he should, in our opinion, have dismissed the action on that ground instead of upholding the plea of res judicata as the question of estoppel per res judicatem did not arise if there was no case before the Court.
The appeal is dismissed with costs assessed at £42 5s 0d.
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