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Doku Kugblawe Of Awunaga V. Agobodjo Agboada Of Awunaga (1931) LJR-WACA

Doku Kugblawe Of Awunaga V. Agobodjo Agboada Of Awunaga (1931)

LawGlobal Hub Judgment Report – West African Court of Appeal

Land—Native Administration Ordinance—Judgment of Native Tribunal.

Suits relating to land in which all the parties are natives having been excluded by legislation from the jurisdiction of the Supreme Court, a Native Tribunal is, when deciding such a suit, exercising an exclusive jurisdiction, and no action to set aside its judgment can be entertained by a Divisional Court.

P. A. Renner for the Plaintiff-Appellant.

J. Henley Coussey for the Defendant-Respondent. The following judgments were delivered :—

MICHELIN, J.

This is an appeal by the Plaintiff-Appellant from a judgment of Gardiner-Smith, J., dated the 30th April; 1931 in which he gave judgment for the Defendant-Respondent with costs to be taxed.

In the action brought before the Divisional Court, the Plaintiff-Appellant claimed that a judgment pronounced against him by the body described as the Native Tribunal of Anlo on or about the 12th October, 1928, should be set aside on the grounds :—

  1. That that body had no jurisdiction.
  2. That the proceedings before that body were irregular and contrary to public policy.
  3. That the nature of the suit on the ground of interest and magnitude was in excess of the jurisdiction of the Paramount Chief and otherwise that the proceedings were contrary to natural justice and good conscience and customary law.

That judgment of the 12th October, 1928, arose out of an action before the Native Tribunal of Anlo, presided over by Fia Togbi II, in which the Defendant-Respondent claimed from the Plaintiff-Appellant the sum of £5 ‘as damages for trespass on land situate in Awunaga. Judgment was delivered by the Native Tribunal in favour of the Defendant-Respondent on the 12th October 1928, for £1 and costs. An appeal from this judgment was taken by the Plaintiff-Appellant to the Provincial Commissioner, but was apparently struck out, and the action the subject of the present appeal was instituted in the Divsional Court on the 23rd March, 1931.

Eight grounds of appeal were originally filed, but Mr. Renner in arguing the appeal before us, confined his submissions entirely to the first ground, which reads as follows :-

“Because the Court declined jurisdiction not considering what purported to be and constituted the Tribunal which gave the judgment sought to be set aside.”

In arguing this ground, he submitted that the whole of the proceedings before the Native Tribunal constituted a farce resulting in a wrong done to the Plaintiff-Appellant. At the hearing before the Native Tribunal the Judges were also witnesses, and the Tribunal was improperly constituted, which was against natural justice. He submitted, therefore, that the Plaintiff-Appellant was justified in coming to the Divisional Court to have the judgment of the Native Tribunal declared to be a nullity. In support of this contention he referred the Court to the judgment of Beatty, J. delivered on the 21st June, 1923, in the case of Nagai Kassa v. Awah II, in which in an action brought in the Divisional Court to set aside a judgment of the Provincial Commissioner of the Eastern Province in a land case, on the ground of want of jurisdiction, the learned Judge held that the Provincial Commissioner had no jurisdiction in the matter and that so far as the Supreme Court was concerned, his judgment would be treated as a nullity, but that he was not prepared to set it aside.

See also  Oladimeji V. The King (1951) LJR-WACA

Mr. Renner submitted, therefore, that the learned trial Judge in the present case was wrong in holding that the Plaintiff-Appellant had made out no cause of action, and in giving judgment for the Defendant-Respondent.

In the case of The Attorney-General v. Hotham, 24 R.R. 21, it was held that when a limited Tribunal takes upon itse f to exercise a jurisdiction which does not belOng to it, its decision amounts to nothing and does not create any necessity for an appeal.

In the case of Padstow Total Loss and Collision Assurance Association, in re Bryant 20 Ch.D. 137, it was held, however, 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 must, until it be discharged, be treated as a subsisting order and can only be discharged on appeal.

In the case of Kojo Pon v. Alta Fua, F.C. 1926-29 522, the difference between these two classes of cases were considered by the Full Court, when it was held that an action does not lie to set aside the judgment of a Court of co-ordinate jurisdiction, except on the ground of fraud.

It appears to me, therefore, that the first question to be considered in the present case is whether the Native Tribunal, which delivered the judgment sought to be declared a nullity and set aside, was or was not a Court of limited jurisdiction.

In the case of Asante v. Tchinbuah, F.C. 1926-29 406, where the plaintiff sought to set aside the judgment of a Provincial Commissioner sitting under the Native Jurisdiction Ordinance, on appeal from a Native Tribunal in a land case, for want of jurisdiction, it was held by the Full Court on appeal that a Divisional Court could not in its original jurisdiction set aside and formally

declare a nullity a judgment given on appeal by a Provincial Commissioner sitting in a Court especially created by Ordinance for a special class of cases which was obviously not a Court of inferior jurisdiction to a Divisional Court.

The judgment of the Full Court in that case appears to me to overrule the judgment of Beatty, J. in Nagai Kassa v. Await II to which I have previously referred.

In an application for the issue of a writ of Prohibition to restrain the Native Tribunal of the Omanhene of Akwamu from enforcing a judgment of that Tribunal in a land case of Tutu v. Doe, on the ground of want of jurisdiction in the Native Tribunal, which came on for hearing before me in the Divisional Court on the 22nd September, 1931, and was refused, during the course of my judgment I stated as follows :—

See also  S. G. Acquah & Ors V. P. T. Acquah & Anor (1941) LJR-WACA

” Here as stated by their Lordships in the Privy Council Judgment in Ntah v. Bennieh (17-11-30) ‘ the Colonial Legislature has conferred upon the Native Tribunals an exclusive original jurisdiction in matters relating to the ownership of land,’ and has deprived the Supreme Court of original jurisdiction except in cases transferred to the Court under the provisions of section 71 of the Native Administration Ordinance.

” The Legislature has also provided the right of appeal from such judgments, to the Court of the Provincial Commissioner and subt-equently to the West African Court of Appeal, and has further provided for a transfer of the hearing to some other appropriate Tribunal or Court whenever the question of jurisdiction is raised upon an application being made prior to the hearing of an action. . . .

” Although the Native Tribunal in exercising a considerable amount of its jurisdiction is an inferior Court, subject to being restrained by writs of prohibition issuing from the Supreme Court, I am unable to hold that when exercising the special jurisdiction conferred upon it by the Legislature in hearing land cases, it is such an inferior Court. In my opinion, apart from judgments in such cases being liable to be set aside on appeal for want of jurisdiction, a Divisional Court would have no jurisdiction to hold that such a judgment amounted in law to a nullity.”

The same principle applies to the present case. Although the various points raised by Mr. Renner undoubtedly constituted grievances which might have formed the subject of an appeal from the judgment of the Native Tribunal to the Provincial Commissioner, yet such grievances could not be considered by the Judge of a Divisional Court in an original action brought before him to set aside such judgment. The appeal must therefore be dismissed with costs assessed at £25 3s.

I have had the advantage of readirg the judgment of Michelin, j. and agree with the conclusion that this appeal should be dismissed_ I should like, however, to add a few words as to the reasons why it seems to me that that course should be taken.

The first thing to be noticed in this case is that Plaintiff-Appellant, having appeared before the Tribunal and submitted himself to its jurisdiction without question, had judgment given against him. From that judgment the law gave him the right to appeal.

That right he lost because he let the time for appeal go past. Then he conceived the idea of circumventing the law which provided that, unless he exercised the right to appeal within a certain time. he should lose that right, by bringing this action in which he asked the Divisional Court to set aside the judgment of the Tribunal.

Had he succeeded it is clear that he would have obtained by his action the very thing which the law had decreed that owing to his negligence he should lose. That being the case it is equally clear that even if the Court had jurisdiction to give effect to his claim it should not do so.

See also  Ohene Kojo Sintim & Ors V. C. M. Apeatu (1935) LJR-WACA

The next thing is that the Divisional Court had no jurisdiction to entertain this claim. The judgment of the Tribunal was given in a case between natives involving questions as to the title and occupation and possession of land, and such cases have been expressly excluded by legislation from the jurisdiction of the Supreme Court, except in circumstances which have no application here and therefore need not be particularised, and have been reserved to be decided by Native Tribunals. It stands to reason, I think, that before a Court can be asked to set aside Ulf judgment of another it must itself have jurisdiction in the matter which it is asked to adjudicate about. Mr. Renner argues that this appeal is not concerned with the question of the rights of the parties to the land, but has to do only with the irregular manner in which the Tribunal was constituted and conducted its business, but it is certain that if he had succeeded in his claim the rights of the parties to the land would have been very much affected, and in my opinion in asking the Divisional Court to set aside the judgment of the Tribunal he was in effect asking it to exercise jurisdiction in a matter when it had none.

We know that the Supreme Court exercises a general control over subordinate Courts in the Colony, but it always does so in matters over which it itself has jurisdiction.

Further, a Divisional Court may set aside the judgment of another Divisional Court when such judgment has been obtained by fraud. To ask a Divisional Court, however, to set aside the judgment of a Tribunal in a matter which has expressly been taken away from the Divisional Courts cognisance by Statute, is very much as if it were asked to set the judgment of a foreign

Court with which it has nothing to do. The analogy of course is not complete, since there are relations between a Divisional Court and a Tribunal which do not exist between the Supreme Court and a foreign Court, but the point is that when once its jurisdiction in any matter has been taken away from it and conferred upon another body, a Divisional Court cannot interfere with that body so far as that matter is concerned, but must confine its operations in relations to that body strictly within the limits laid down by the Statute. No Legislative authority has, in fact, been conferred upon a Divisional Court to set aside the judgment of a Tribunal in a matter such as this, and accordingly the judgment of the Court below ought in my opinion to be confirmed.


The appeal must be dismissed with costs.

SAWREY-COOKSON, J. I concur.

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