Nsoatrehene Twene Kwame V. BERE Kumhene Ko Jo Barnier (1940)
LawGlobal Hub Judgment Report – West African Court of Appeal
Claim for ownership of land originating in Native Court—reheard by Court of Chief Commissioner and amended by that Court to include a larger area—appeal from Chief Commissioner’s Court allowed.
Held : The Order amending the claim so as to cover an area of land many times larger than that covered by the original claim was ultra vires, and All subsequent proceedings were without jurisdiction and void. The case to be reheard by the Chief Commissioner’s Court on the original issue.
The facts are fully set out in the judgment.
T. Hutton-Mills for Appellant.
H. A. H. Banjamin for Respondent.
The following joint judgment was delivered :—
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.
In this case the plaintiff in the Asantehene’s Court ” A ” claimed ” by oath the ownership of a parcel of land known as Kotafo and the defendant also responc’ed that the said land is his property.” Kotafo (or as it is also called in the proceedings ” Kotofa “) is, as is agreed by Counsel in this Court, a very small area of land the importance of which lies in the fact that it has been used as a Chief’s burial ground. After a full and careful hearing and sending viewers to inspect the land the Asantehene’s Court ” A ” gave judgment for the plaintiff expressing itself as ” satisfied that Kotofa is the property of the Plaintiff’s Stool.” That Court was in fact careful to confine its judgment to the question actually in dispute before it, namely the ownership of Kotafo land, although in order to arrive at its decision it had had under consideration a very much larger area.
The defendant appealed to the Court of the Chief Commissioner of Ashanti, which, acting under the powers conferred upon it by section 27 (1) (a) of the Native Courts (Ashanti) Ordinance (Cap. 80), decided to re-hear the whole case. The Acting Assistant Chief Commissioner, who constituted the Court, after a survey had been made, considered that the dispute covered a very much larger area than Kotafo land—in fact two areas each of them covering many square miles. He proposed to take into consideration the whole
of both areas. On the defendant-appellant otjecting that the Court had ” no power to adjudicate as to the ownership of any part of the land other than that portion of the land for which the Court below gave judgment,” the Acting Assistant Chief Commissioner of Ashanti reserved that point of law for the consideration of the Supreme Court. He submitted it to the Divisional Court
Eitto.a_si .3x1r1 Ratime_ixo.ati., J. .eirp,rea.stElfatioxv_i_Ew opinitio
With reference to your stated case in the above-mentioned suit, I am of the opinion that you can make the necessary amendment on your own motion if you think fit and hear the case de novo.
“2. In my view Order 52 Rule 19, together with Order 26 Rule 1, invests you with the necessary judicial powers.
” 3. I do not consider it necessary that you should invoke the aid of section 02 (1) in this case. The rules I have referred to afford you ample powers.” –
We know of no power under which the point was thus submitted to the Supreme Ccurt or under which the opinion was expressed. Nor, with all respect to the learned Judge, do we agree with it. Order 52 Rule 19 does not apply to the Chief Commissioner’s Court since ” the Appeal Court ” therein referred to means a Divisional court of the Supreme court ‘see Rae i of die same arcieri. We agree however that section 62 (1) of the Courts Ordinance (Cap. 4) does not come into the question at all, since, throughout, the Chief Commissioner of Ashanti’s Court was functioning as an Appellate Court and not as a Court of first instance.
Acting upon the opinion expressed by the Divisional Court, the Acting Assistant Chief Commissioner of Ashanti, proceeded. to amend the claim so as to cover thewhole of the two larger areas already referred to. He then heard the case in regard to the amended claim, and gave a judgment declaratory of the boundaries between the parties in respect of the whole cf the two larger areas. In regari to Kotafo land he came to the same cmclusion as the Asantehene’s Court ” A “.
The defendant now appeals to this Court on a number of grounds, but we have thought it necessary to hear his Counset on one only, namely 4 (f) which reads :-
‘ The procedure adopted by the Court below at the hearing of the Respondent’s claim against the Appellant was wholly irregular and bad in Law “.
. Under this ground he contends that the order amending the claim so as to cover an area of land many times larger than that covered by original claim was ultra vires, and that all the subsequent proceedings upon the hearing of the amended claim are consequently void. We agree with this contention. Whilst it would ‘be competent to, and indeed the duty of, the Court to amend the claim so that it should conform with the real issues between the parties, this amendment went much further than that. Here the real and only issue between the parties was as to the ownership of Kotafo lands. It was that issue, and that only, in respect of which the oath was sworn and responded to in the
Asantehene’s Court ” A.” It was on that issue only that the !!Twarnett,;. Asantehene’s Court ” A ” gave judgment, and on that issue only Q.) that the defendant appealed to the Chief Commissioner’s Court.v.
To amend the claim and hear the amended claim as was done was Barnier‘
to try a new and different case which was not before the Chief hene) • Commissioner’s Court either on appeal or as a Court of first instance.–
We are therefore of opinion that the proceedings in the Chief rtrd:iand Commissioner’s Court subsequent to the amendment of the claim Graham were without jurisdiction and void. As regards Kotafo land Paul, c.n. itself we think that the Acting Assistant Chief Commissioner was
right in having a survey made and that it was, and still remains, his duty in his judgment, in whichever party’s favour it may be, clearly to define the boundaries of Kotafo land.
The appeal is allowed, the judgment of the Chief Commissioner’s Court, including the orders as to costs, is set aside and the appea: is remitted to the Chief Commissioner’s Court to be reheard on the basis that it is confined to the dispute between the parties as to Kotafo land.
The appellant is awarded costs in this Court assessed at £76. 7s. 2d., and in the Chief Commissioner’s Court costs to be taxed of all proceedings incidental to and subsequent to the application to amend the claim. The costs in that Court up to that point and hereinafter incurred will be in the discretion of the Chief Commissioner’s Court at the re-hearing of the appeal.