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Madam Margaret Tackie V. Mrs. Mary Jones Nelson & Ors (1949) LJR-WACA

Madam Margaret Tackie V. Mrs. Mary Jones Nelson & Ors (1949)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for arrears of rent and ejectment—Title involved—Jurisdiction ofDivisional and Land Courts—Construction of Courts Ordinance, sections 17and 20A (as amended) and of Native Courts Ordinance and of Rents (Control)Ordinance.

Where a claim is brought (as this was) under the Rents (Control) Ordinance, the Native Courts have no jurisdiction to deal with it even where (as here) there was a third party intervening and contesting the landlord’s right to the reversion, and the Land Court, being a division of the Supreme Court, had jurisdiction.

Appeal from the Supreme Court of Nigeria.

011ennu for Appellant (co-defendant below).

Hutton-Mills for Respondent (plaintiff below).

The following judgment was delivered:

Smith, Ag. C.J. This suit was begun in the Divisional Court by Mrs. Beatrice Bruce against the Trustees of the Ocansey estate in which the plaintiff claimed £350 arrears of rent and an Order of ejectment in respect of a property in Accra known as the Palladium which had been leased by the plaintiff to Ocansey on 31st October, 1932, for a period of ten years at an annual rental of £50 and which Ocansey’s Trustees had been holding over since the expiration of the original term.

At an early stage of the proceedings Mrs. Tackie was joined as a co-defendant, and later on Mrs. Bruce died and the present plaintiff was substituted for her.

In her statement of claim the plaintiff, after pleading the facts under which she claimed title, alleged that Mrs. Tackie was improperly joined as a co-defendant ” in that she was no party to the lease executed by the plaintiff in favour of the lessee represented by the first defendants herein “.

Mrs. Tackie’s defence in effect denied the plaintiff’s title but said in paragraph 8 ” in 1932 the plaintiff herein at the request of and with the consent of the second defendant (Mrs. Tackie) and her brother the late J. E. Annan, then the only survivors entitled to the estate of the late Akochoe Korkoi, renewed the lease to Ocansey for a further period of ten years “.

The lessees admitted the lease, but alleged that they had been paying the rents due thereunder to Mrs. Tackie ” for herself and the plaintiff “, that Ocansey had given notice of renewal of the lease for a further period of fifteen years as provided in paragraph 5 of the lease and had agreed with Mrs. Tackle to pay a rental of £100 a year for the extended period, which amount they had been prepared to pay to Mrs. Tackle and were willing to pay into Court.

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The issues in these pleadings may be summarised as a contest between the plaintiff and Mrs. Tackle as to the reversion, with the lessees admitting their tenancy and liability to pay rent but supporting the second defendant’s claim as against the plaintiff.

On 10th March, 1947, the case came before Martindale, J., sitting, as a Land Judge, when the Ocansey’s Trustees attorned tenants and paid the arrears of rent into Court, and after hearing argument the Judge ruled ” There is no jurisdiction in the Land Court. The question of title requires to be settled in the appropriate Native Court to which the parties are referred accordingly.”

This order, however, was reviewed and declared a nullity when it was brought to the Judge’s notice that it was a Divisional, not a Land Court case.

No formal order appears to have been made transferring the case from the Divisional Court to the Land Court, but it was eventually tried before QuashieIdun, J., sitting with an assessor and purporting to exercise the jurisdiction of the Land Court and no objection appears to have been taken to this.

Against the decision of Quashie-Idun, J., the second defendant has appealed to this Court and has raised two questions of jurisdiction.

Her first point is that the Land Court had no jurisdiction to try a case instituted in the Divisional Court, and her second that neither the Divisional Court nor the Land Court had jurisdiction as there was at the material time a Native Court vested with competent jurisdiction to try the case.

Appellant’s first point can be dealt with quite shortly.

Both the Divisional Court and the Land Court are divisions of the Supreme Court and a simple procedure is provided by which the Chief Justice can transfer cases from one division to another. The Judge who tried the case was a Land Court Judge and he followed the proper procedure of the Land Court at the trial. As no objection was taken to his trying the case in that capacity, I do not think that this is a point of substance to be raised on an appeal.

The second point is more substantial and presents some difficulty.

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It turns upon the proper construction of sections 17 and 20A of Cap. 4 as amended by Ordinance No. 23 of 1944 and 27 of 1945, and of the Native Courts Ordinance (No. 22 of 1944) and the Rents (Control) Ordinance, 1947 (No. 30 of 1947).

The Courts Ordinance (Cap. 4) after conferring unlimited jurisdiction on the Supreme Court, proceeds under section 17 to restrict the exercise of that jurisdiction in certain respects, in particular, sub-section (a) provides:—

” The Supreme Court shall not exercise jurisdiction-

” (a) in the Gold Coast Colony in any civil cause or matter which the Court considers to be properly cognizable by a NatiVe Court in accordance with the provisions of section 58 of the Native Courts (Colony) Ordinance, 1944.”

As regards land cases section 20A provides that

” Land Court shall have exclusive original jurisdiction to hear and determine any cause or matter relating to the ownership, possession or occupation of land-

” (a) Where there is no Native Court competent to try the cause or matter.”

Lastly, the Native Courts (Colony) Ordinance, 1944, after conferring jurisdiction on Grade A and Grade B Native Courts in suits between natives in causes ” relating to the ownership, occupation or possession of land “, by section 15 provides that :-

 “” Subject to the provisions of this Ordinance a Native Court shall administer-

-the provisions of any Ordinances which such Native Court is, by or

under such Ordinances, authorised to administer;

“the provisions of any Ordinance which a Native Court may bk.

authorised to enforce by an Order made in accordance with section 16.”
Mr. 011ennu, for the appellant, strongly urged that the present case, being one
betv.een a landlord and tenant claiming arrears of rent and ejectment with a

third party intervening and contesting the landlord’s right to the reversion, is a case relating to the ownership, occupation or possession of land and that the Supreme Court bad no jurisdiction as there was a Native Court competent to try the cause.

Mr. Hutton-Mills, for the respondent, argued that the Native Courts have no jurisdiction to deal with cases under the Rents (Control) Ordinance and that therefore the jurisdiction of the Supreme Court remains unimpaired in cases of this type.

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In my opinion this contention is well founded. Ordinance 30 of 1947 applies in Accra to premises the annual rent of which does not exceed £100 and the premises in this case fall within that category.

Section 8 of the Ordinance makes it an offence for any person to eject a tenant ” save in pursuance of an order or judgment of a Court under the provisions of section 9 of the Ordinance “.

There is no definition of ” Court ” in the Ordinance but as section 11 when providing for fees of Court refers to a Schedule in the Courts Ordinance the implication is that ” Court ” in Ordinance 30 of 1947 means a Court as defined in the Courts Ordinance and in the latter ” Court ” and ” Native Court ” are separately defined.

Moreover, Native Courts are not referred to anywhere in Ordinance 30 of 1947, nor has any order been made under section 16 of the Native Courts Ordinance authorising them to enforce its provisions.

There was, therefore, no Native Court vested with jurisdiction to give the plaintiff all the remedies which she sought. The introduction of a third party raising issues as to the landlord’s title does not alter that fact, and the Land Court, in my view, consequently had jurisdiction to entertain the cause.

I think the hearing of the appeal should therefore proceed on the other grounds raised by the appellant.

Preliminary point decided in favour of respondent.

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