James Nudo Kwakuvie & Ors V. Kartey Adabaar On Behalf Of Himself And As Representing The Adabaar Family Of Ada (1942)

LawGlobal Hub Judgment Report – West African Court of Appeal

Judgment delivered by Native Tribunal—Order made under section 75 (1) of Native Administration Ordinance after judgment.

Facts

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 sires ” section 75 (1).

The Judge overruled this contention but said he would hear evidence as to the existence of a subsisting judgment between the parties in relation to a plea of ” res judicator ” raised by the defendant.

After hearing this evidence the Judge upheld the plea of ” yea juiliaata ” and held there was no case before him. Against this decision the defendant appealed.

Held

Power of transfer given by section 75 (1) of the Native Administration Ordinance ceases to exist after a anal 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 70 (1) was ” ultra vires.”

Appeal dismissed.