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John Djabrtey V. Benkumhene Antwi Awua II & Anor (1938) LJR-WACA

John Djabrtey V. Benkumhene Antwi Awua II & Anor (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for damages for breach of an agreement between nativesfromrelating to land and counter-claim for unpaid balance ofJudgmentpurchase money.ofSupremeThe plaintiff sued the defendant for damages as above and the defendantCourt.counter-claimed as above. The trial Judge held he had no jurisdiction asthe suit was one of contract between natives. The plaintiff appealed. Cap. 76 considered.

Held: (Webb, C.J., dissenting) the trial Judge had no jurisdiction but not for the reasons set out in his judgment but because the suit was one between natives relating to possession of land.

K. A. Bauman for Appellant.

Dr. J. B. Danquah for Respondent.

The following judgments were delivered:—


In this case the plaintiff caused to issue the followng writ in the Supreme Court : —

 ” No. 92.Suit No. 92/ 1937

No. 30—Writ of Summons.


” Between—






” To Benkumhene Antwi Awua II for himself and .” representing the Stool of Begoro-

” You are hereby commanded in His Majesty’s name ” attend before this Court at Victoriaborg, Accra, on Tuesday

” the 9th day of November, 1937, at 8.30 o’clock in the fore” noon, then and there to answer a suit by John Djabartey ” of against you.

” The plaintiff sometime about the year 1929 contracted ” with the Stool of Begoro by its representatives at the time, ” to wit : Benkumhene Twum Antwi I and his elders and ” purchased and had conveyed to him in accordance with ” native customary law and was put into possession of a ” portion of stool land situate at Odedeso and measuring two ” hundred and fifty-five (255) native ropes, for the price of ” two thousand five hundred and fifty pounds (£2,550), which

amount the plaintiff has paid to the said stool.

” It was an implied term of the contract that the
” plaintiff and members of his company should be left in
” undisturbed possession of the land by the defendant stool,
” but in breach of agreement the defendant would not leave
” the plaintiff in undisturbed possession of the land, and
” would not allow the plaintiff and his agents and workmen
” to survey the land, and the plaintiff therefore claims from
” the defendant the sum of five hundred pounds (£500)
” damages for the breach of the term of the contract to leave
” him in peaceful and uninterrupted possession of the land.
” Issued at Victoriaborg, Accra, the 22nd day of October,

” 1937.” Sum claimed£500 damages.
” Court fees1000
” Bailiff’s fees090
” Total…£51090

” Acting Chief Justice.”

The defendant after obtaining leave filed the following counterclaim :—

” Take notice that the above-named defendant whilst

See also  John Chidiak V. David Coker (1954) LJR-WACA

denying the plaintiff’s claim, by way of counterclaim, ” claims from the plaintiff the sum of one thousand and ” ninety pounds (X1,090) being balance of purchase-price due ” and owing by the plaintiff to the defendant in respect of ” land situate at Odedeso in the Begoro Division and ” measuring two hundred and fifty-five (255) native ropes.”

In his affidavit supporting his application for leave to file a counterclaim the defendant swore, inter alia:—

2. That the land at Odedeso subject-matter of the suit ” herein was agreed to be sold in accordance with ” native custom by the stool of the Benkumhene of ” Begoro to a group of Krobo farmers for whom the ” plaintiff herein acted as spokesman.

  1. That of the purchase price of £2,550 for 255 ropes, ” £1,460 has been paid leaving a balance of £1,090 ” due by the plaintiff herein.
  2. That upon payment of this said balance by the ” plaintiff and his people the sale will be complete ” in accordance with the requirements of native ” custom.
  3. That to avoid multiplicity of suits the defendant

herein desires to file a counterclaim for the sum of ” £1,090 in respect of the unpaid balance of the ” purchase price.”

On the suit coming on for hearing before Yates, J. in the Divisional Court at Accra he made the following order : —

 ” The parties are referred to the appropriate tribunal ” as this is purely a land case over which the Court has no ” jurisdiction.”

Plaintiff’s counsel who was absent when the order was made asked next day that it be reconsidered. The judge acceded to the request and heard argument, after which he gave the following ruling :—

” In this matter the question is whether or not the Court ” has jurisdiction? Mr. Bossman submits that the ” counterclaim and not the writ of summons discloses the ” real issue and is the construction of a contract. He further ” relies on SaJraku III v. Mate Kole, West African Court ” of Appeal, November 2nd, 1933. In that case the ratio ” decidencli was there was nothing to show on the writ of ” or pleadings that the lower Court had no jurisdiction. ” This case is entirely different, and the claim is £500 ” damages for breach of contract entered into and made ” between the parties according to native customary law. ” That being so and the parties being natives, this Court ” has no jurisdiction and the parties are therefore referred ” to the appropriate tribunal.

” The plaintiff having brought his action in the wrong ” Court the defendant is entitled to costs here but he is not

” entitled to any costs he may have incurred on

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” counterclaim as he should have raised the question of ” jurisdiction before filing it.”

Against that ruling the plaintiff has appealed to this Court on the following grounds:—

” 1. That the Court was wrong in deciding from the ” mere writ of summons and counterclaim but ” without any formal pleadings or counsel’.

openings, that it bad no jurisdiction to entertain ” the suit.

  1. That the writ of summons and counterclaim in the ” suit, if anything, disclosed that the issue was ” whether the parties had fulfilled or complied with ” the terms of the contract of sale and purchase ” entered into between them concerning the ” land—and that no question of title or ownership ” or adverse possession and occupation was involved” and the Court was therefore wrong in deciding it ” had no jurisdiction to try that issue as to the terms ” of the contract of sale and purchase between the ” parties.
  2. That the judgment of the Court dismissing the suit ” for want of jurisdiction was contrary to law, in ” that the Court had no material or other proof ” before it that question or issue of ownership, title ” or adverse possession or occupation was involved in ” the suit, to warrant the said Court to refer the ” parties to the competent native tribunal as it did.”

The section under which the order was made is section 65 of the Native Administration (Colony) Ordinance (Cap. 76), the material parts of which read as follows :—

” Whenever it shall appear to the Court that any civil ” cause or matter brought before it is one properly cognizable ” by a tribunal under sections 48, 49 or 50   , the ” Court shall stop the further progress of such civil cause or ” matter before it, and refer the parties to a competent ” tribunal  If

And the relevant parts of section 48 are :—

” 48 (1) A Paramount Chief’s Tribunal shall have and ” may exercise within the state of such paramount chief ” civil jurisdiction for the shearing and determination of the ” causes and matters hereinafter mentioned, whether ” commenced by oath, writ of summons, or other lawful ” means, in which all parties are natives and the defendant ” was at the time when the cause of action arose within such

State Of

” (2) The causes and matter hereinabove in this section ” referred to are the following :

Section 17 of the Courts Ordinance (Cap.4) is also relevant, the material part reading as follows

” Notwithstanding anything contained in this Ordinance

” the Supreme Court shall not exercise jurisdiction-

See also  Alhaji F. A. Onasanya V. Daniel Adeniji (1952) LJR-WACA

” (a) in the Gold Coast Colony in any civil cause or

” matter subject to the provisions of section 65 of

” the Native Administration (Colony) Ordinance


In connection with the extracts quoted it may be noted—(1) That under section 65 of chapter 76 it is not the suit but the parties who must be referred to the appropriate tribunal; and (2) In sub-paragraph 2 (c) of section 48 of chapter 76 there is no financial limitation such as that imposed in sub-paragraph 2 (e).

” Personal suits in which the debt, damage, or demand

” does not, exceed one hundred pounds;”

I confess that I am unable to understand the reasons given by the Judge in his ruling for making the order, but I do understand and agree with the argument of the respondent in support of the order, namely that the suit is on the face of it and in fact a suit relating to the possession of lands situated within the state of the Paramount Chief of Akim Abuakwa and that therefore that paramount chief’s tribunal has jurisdiction to hear and determine it, so that under section 65 of chapter 76 it was compulsory upon the Court below to make the order which it did.

The argument of the appellant contra is to the effect that a narrower meaning is to be put upon sub-paragraph 2 (c) of section 48 of chapter 76 and it must be interpreted as though it read :—

” Suits claiming ownership, possession etc., etc.”

and in support of his argument lie relies upon the judgn;tent of this Court in the case of Sasraku v. Mate Kole (unreported) on the 2nd November, 1933, contending that that case is on all fours with the present case. I do not agree with him on either point ; if the legislature had intended the narrower meaning it would have used the narrower wording, and the case relied upon is entirely different. It was merely a claim for an account of tolls collected in a market and the payment of the amount so collected, and the reasons given for the decision were :—

” The Court being satisfied that on the writ and plead” ings there is nothing to show that the lower Court ” had no jurisdiction. If the matter for instance ” amounts to a claim to one-third of the tolls under ” an agreement between the parties there would ” clearly be jurisdiction.”In the present case on the other hand it is apparent on the face
of the writ that the suit is one relating to the possession of land.
the plaintiff contending that he is entitled to.

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