Foday Massaquoi V. Paramount Chief Yamba Kunyafoi (1937)

LawGlobal Hub Judgment Report – West African Court of Appeal

Case stated—Claim between natives for moneys lent and disbursed—Effect thereon of section 39 of Ordinance 40 of 1992—Has the Circuit Court jurisdiction ?

The facts of the case are sufficiently set out in the case stated, which is as follows :

” In this action the plaintiff and the defendant are ‘ natives ‘ as defiiied Webber,

by the Protectorate Ordinance No. 32 of 1933.C.J.

” The plaintiff on the 14th December, 1935, issued an action in this Court as follows :

” The plaintiff’s claim against the defendant is to recover the sum of £129 13s., being amount lent to the defendant and amount paid for the use of the defendant at his request which amount he has admitted liability for :

” Particulars :

E. S. BEOKU BETTS. Plaintiff’s Solicitor.

1. A preliminary objection was taken by Counsel for the defendant that this Court had no jurisdiction on the ground that by the provisions of section 39 of the Protectorate Courts Jurisdiction Ordinance, 1932 (No. 40 of 1932). the Circuit Court has jurisdiction only to hear causes and matters which by virtue of the provisions of the Protectorate Courts Jurisdiction Ordinance or any other Ordinance are not cognizable by any other Court under the said Protectorate Courts Jurisdiction Ordinance and as by section 9 of the same Ordinance ‘ the Native Courts ‘ have jurisdiction in all civil cases triable by native law arising exclusively between natives other than a case between two or more Paramount Chiefs or tribal authority involving a question of title to land or a case in which a debt owing to him in connection with his trade is claimed by the holder of any trading licence : this matter was not cognizable by the Circuit Court.
2. Evidence was taken that the plaintiff was the holder of a trading licence and had licences during all the material dates up to the present.
3. The Counsel for the plaintiff in reply contended :

1. That there was no evidence that the matter was triable by native law and native law should be proved before the Court to oust its jurisdiction.
2. That the first 8 items of the Claim were Moneys advanced on loan before the Protectorate Courts Jurisdiction ‘Ordinanbe, 1932 (No. 40 of 1932), came into force and that by virtue of section 13 sub-section (2) sub-section (c)

of the Interpretation Ordinance (No. 29 of 1933) the right of the plaintiff to

Massaquoirecover them were not affected by this Ordinance but by section 39 of the

v.Protectorate Courts Jurisdiction Amendment Ordinance (No. 19 of 1927.)

Paramount” 4. There was no evidence before the Court as to native law and customs,

Chief Yambabut I did not consider such proof necessary.

Kunyafoi.” I upheld the submission of Counsel for the defendant that the Court

Webber,had no jurisdiction and struck out the case.

” 5. The questions for the opinion of the West African Court of Appeal are the following :

1. Was it necessary for native law and customs to be proved before the Circuit Court under section 9 of the Protectorate Courts Jurisdiction Ordinance. 1932, before the jurisdiction of that Court can be ousted ?
2. Is the right of the plaintiff to recover the amount to be governed by the repealed Ordinance of 1927 or by the present Ordinance enacted in 1932 ? ” (Sgd.) A. WEBBER,

E. S. Beoku Betts for Plaintiff.

T. E. Nelson Williams for Defendant.

The following opinions were delivered :—

KINGDON, C.J., NIGERIA, AND PETRIDES, C.J., GOLD COAST.

1. The answer to the first question submitted is ” No.”
2. In regard to the second question, the answer turns upon the question whether the right which the plaintiff had up to January 1988, to go to the Circuit Court to enforce his right to recover moneys from the defendant is a right acquired, accrued or incurred within the meaning of section 18 (2) (c) of the Interpretation Ordinance, 1988. We are of opinion that it is not (Abbott v. The Minister for Lands, 1895, A.C. 425). This case is within the general rule of law that, while rights are not statutorily altered retrospectively, procedure is, apart from indications to the contrary, altered retrospectively. (Wright v. Hale, 80 L.J. ex. 40, The Ydun, 1899, Probate Division 286, In re Hale’s Patent 90 L.J., Ch., p. 85.)

Our answer therefore to the second question submitted to us is that the right of the plaintiff to recover the amount is to be governed by the present Ordinance enacted in 1982.

MACQUARRIE, J.

The question we are asked is :—

2. Is the right of plaintiff to recover the amount to be governed by the repealed Ordinance of 1927 or by the present Ordinance enacted in 1982 ?

In the year 1985 the plaintiff instituted a claim in the Circuit Court against the defendant in respect of transactions dated before December 81st, 1982. Plaintiff and defendant are both natives.

Up to that date that claim would be triable in the Circuit Court. But the new Ordinance coming into force on the 1st January, 1988, gave native Courts jurisdiction in such cases, thus removing them from the jurisdiction of the Circuit Court. The plaintiff claims nevertheless that his action is triable in the Circuit Court.

Mr. Betts for plaintiff contended that, by section 18 (2) (c) of the Interpretation Ordinance, the right of action which plaintiff had up to 31st December, 1982, is not effective by the repeal of the old Ordinance.

He cited a number of English cases which, however, are all cases where there had been some proceedings taken before new legislation or else, like the case of Hate’s Patent, of exceptional procedure, and depending also upon the legislation dealing with it or like Henshall v. Porter, 1923, 2 K.B. 193, where a cause of action was in question.

In my opinion the contention rests upon a misconception of the meaning of the right. Had the plaintiff sued before the new Ordinance, he would have had no choice but to sue in the Circuit Court. He had a right to go to that Court, but equally he had no other Court to go to. He took no action at all before the new Ordinance and now wishes to act as though there had been no alteration in the law. That alteration does not affect his right to sue but does alter the tribunal to which he has to go.

In addition to the cases referred to in the judgment just read I would refer to the judgment of Atkin, L. J., in Gell v. White, 1922, 2 K.B., at p. 481, where he says ” it is obvious that that provision (of the Interpretation Act) was not intended to preserve the abstract rights conferred by the repealed Act.” It seems to me the right of plaintiff to go to the Circuit Court before the new Ordinance was such an abstract right.

I agree therefore that the answer to the question should be that the plaintiff’s right to recover is governed by the present Ordinance.