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KOJO GYAPON AND ANOTHER
V.
OSEI KWABENA II
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
13TH DAY OF JUNE, 1944
2PLR/1944/72 (WACA)
OTHER CITATION(S)
2PLR/1944/72 (WACA)
(1944) X WACA PP. 213 – 216
LEX (1944) – X WACA PP. 213 – 216
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
DOORLY, J.
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BETWEEN:
1. KOJO GYAPON, KONONGOHENE, FOR AND ON BEHALF OF THE KONONGO STOOL
2. KOFI AKRASI II, NYARBOHENE, FOR AND ON BEHALF OF THE STOOL OF NYARBOE – Plaintiffs
AND
OSEI KWABENA II, PATRIANSAHENE, FOR AND ON BEHALF OF THE PATRIANSA STOOL – Defendant
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ORIGINATING COURT(s)
Case stated by the Kumasi Divisional Court
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Restrictions on exercise of Supreme Court’s jurisdiction – Suit relating to ownership of land as between Chiefs – Courts Ordinance, s. 14, s. 17, s. 62(1)(a) – Boundary (Land, etc.) Disputes Ordinance, s. 3(1), s. 3(3)
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CASE SUMMARY
Plaintiffs prayed the Supreme Court at Kumasi to fix the correct boundary between them and Defendant under an executive decision of 1910. The Judge decided (subject to the opinion of the W.A.C.A.) that the Court had no jurisdiction in a suit relating to the ownership, etc., of lands between Chiefs of different divisions in Ashanti, in view of the Courts Ordinance, ss. 17 and 62(1)(a). The Chief Commissioner’s decision had been given under the Boundary (Land, etc.) Disputes Ordinance, s. 3(1); and the present dispute related to the source of the River Akroponsu and involved a large tract; but it was argued for Plaintiffs that s. 3(3) of the Boundary (Land, etc.) Disputes Ordinance overrode the provisions restricting the Supreme Court’s exercise of jurisdiction.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that,
(1) s. 14 of the Courts Ordinance confers full jurisdiction on the Supreme Court but that s. 17 imposes a restriction on the exercise thereof;
(2) a pronouncement in the suit would have had the effect of adjudicating upon the owners hip of the land contained within certain lines – an adjudication which could only be regarded as deciding the ownership of land as between Chiefs in Ashanti contrary to the restriction imposed by s. I7;
(3) the language of s. 3(3) of the Boundary (Land, etc.) Disputes Ordinance was too vague and indirect to restore the exercise of the jurisdiction restricted as aforesaid, and seemed to presuppose a case in a Court in which a question arose as to the exact boundary, e.g. where all the parties were not natives.
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MAIN JUDGMENT
The opinion of the Court was delivered by Doorly, J:
This is a case stated by Fuad, J. in a suit before him sitting in the Divisional Court at Kumasi. The writ in the action reads as follows:-
In this suit the plaintiffs’ claim is:-
“For the Court to cause the correct boundary between the plaintiffs and the defendant to be fixed in terms of an executive decision dated the 26th day of March, 1910, whereby the boundary between the plaintiffs and the defendant was fixed by Captain Armitage as follows:-
“Starting from the junction of the Anunsu and Mintinasu, thence a straight traverse to the source of the Akroponsu, thence following that stream till it flows into the Weresu thence following Were to the point where the Kokrowi stream flows into it, thence following Kokrowi to the point where it crosses the Konongo-Juaso road.”
The question reserved for the opinion of this Court is.-
“Whether or no this Court (i.e. the Supreme Court) has jurisdiction to entertain this suit?”
and the learned Judge gives his decision, subject to the opinion of this Court of Appeal, that the Supreme Court has no jurisdiction to entertain the suit.
It is clear that in stating the case and giving his decision in this form the learned Judge does not use the expressions “has jurisdiction” and “has no jurisdiction” in their widest sense for in the case of Ababio v. Ackumpong 6 W.A.C.A. 173, attention was drawn to the difference between the jurisdiction which the Supreme Court possesses and that which it may exercise. It was pointed out that section 14 of the Courts Ordinance (Cap. 4) confers upon the Supreme Court full jurisdiction and that the Court has never been dispossessed of that full jurisdiction, but certain restrictions upon its exercise have been imposed.
It is therefore presumed that what the learned Judge really desires is an answer to the question-
“Is the Supreme Court precluded by law from exercising jurisdiction in this suit?”
We therefore propose to examine and answer this question. The learned Judge of first instance took the view, subject to the opinion of this Court, that by virtue of the provisions of sections 17 and 62(1)(a) of the Courts Ordinance the Supreme Court should not exercise jurisdiction for the reason that the suit is one relating to the ownership, possession or occupation of lands arising between Chiefs belonging to different divisions within Ashanti and accordingly within the jurisdiction of the Court of the Chief Commissioner, Ashanti and therefore a suit in which by the provisions of section 17 the Supreme Court should not exercise jurisdiction.
The suit is in terms one for the fixing of a boundary between the lands of the contending parties, which had been the subject of an executive decision given by the Chief Commissioner under the provisions of section 3(1) of the Boundary (Land, etc.) Disputes Ordinance (Cap. 120) and validated under the terms of that subsection by its being officially recorded in the Boundary Book.
The dispute which has arisen is in regard to the precise position of the source of the River Akroponsu involving, as the Judge states, many square miles of valuable land with concessions on it. It was stated in this Court by Counsel for the plaintiffs that there were two rivers which ran into each other and continued as the River Akroponsu and that the question in dispute was which of these branches of the river was the Akroponsu referred to in the executive decision. It is clear, therefore, that a pronouncement one way or the other would have the effect of adjudicating upon the ownership of the land contained within. the lines starting from the junction of the Anunsu and the Mintinasu to the source of the stream nearest to that pint, thence down that stream to its confluence with the other stream, thence up the other stream to its source and so back to the point of commencement.
Such an adjudication can in our opinion be regarded only as a decision as to the ownership of land claimed by owners of lands adjoining one another and arising between Chiefs of different divisions. It matters not whether the Chiefs are Chiefs of different divisions in Ashanti or of different divisions in the Ashanti Confederacy, for by section 35 of the Native Courts Ordinance (Ashanti), Cap. 80, the Divisional Court is required to stop the further progress of any civil cause or matter before it and refer the parties to a competent Native Court whenever it shall appear to the Court that the cause or matter is one properly cognizable by a Native Court. It follows that, whether the matter for decision in an action is cognizable by the Court of the Chief Commissioner, Ashanti, or of a Native Court, the position of the Supreme Court is the same; it must either not exercise jurisdiction or it must stop the proceedings and send them elsewhere.
We are therefore in agreement with the trial Judge that the action before him was one relating to the ownership, possession or occupation of lands arising between Chiefs in Ashanti.
For the plaintiffs it is argued that section 3(3) of Cap. 120 overrides the provisions of the laws which prohibit the exercise of jurisdiction by the Supreme Court in such cases.
The subsection reads as follows:
“If in any case relating to the boundary of any land any doubt or question shall arise as to the correct interpretation or application of any such executive decision as aforesaid, the Court (which expression does not include a Native Court) may cause the boundary concerned to be fixed to the best of its ability, guided always by the principle of applying such decision as closely and with as much precision as the Court shall consider practicable. Where a boundary is, either as of first instance or on appeal, so fixed by the Supreme Court, no appeal shall lie from the Court’s judgment with respect to such fixing.”
We are not prepared to hold that the power to exercise jurisdiction can be restored to the Supreme Court by language so vague and so indirect.
We are strengthened in this view by the terms of Cap. 118, the Boundaries Ascertainment Ordinance, which refers to the Colony and which declares in the plainest manner that such disputes are to be decided by action in the Divisional Court. The last-mentioned Ordinance was enacted in 1905; if in 1929 and 1935 (the years of the enactment and amendment of Cap. 120) the legislature had intended to place these matters within the sole jurisdiction of the Supreme Court, it had an excellent model in Cap. 118.
Furthermore the opening words of section 3(3) of Cap. 120, “If in any case relating to the boundary of any land any doubt or question shall arise as to the correct interpretation … of any executive decision as aforesaid, the Court may cause the boundary … to be fixed …” seem to pre-suppose the existence of a “case” in a Court and that the doubt or question arises in regard to the exact boundary in that case. They do not appear to authorise the filing of an action in a Court not exercising jurisdiction in land cases for the express purpose of answering such question or of resolving such doubt.
The interpretation sought to be put on the subsection by Counsel for the plaintiffs is one that this Court would accept only if on any other interpretation the law would be meaningless, but there is certainly one class of case which would necessarily com before the Supreme Court as a Court of first instance, in which a doubt or question might arise as to the interpretation of an executive decision concerning boundaries – we refer to cases in which all the parties are not natives; and it is not impossible to conceive of circumstances by which cases in which a similar doubt or question had arisen should find their way to the Supreme Court on appeal.
For these reasons we are of opinion that the Supreme Court is precluded by law from exercising jurisdiction in this suit.
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