Sophia Malm V. Maurice Meyer Wulff (1937)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for possession of land filed as personal in Native Court and transferred to Divisional Court—Application under Order 26 of Schedule 3 to Courts Ordinance, 1935, to amend to enable plaintiff to sue as head of family refused—Plaintiff’s counsel calls no evidence and announces he does not wish to proceed further—Case struck out—Appeal to Court against trial Judge’s refusal to amend.

Held : Appeal dismissed :

1. the case having been struck out there is no case pending in respect of which an interlocutory appeal could be brought ;
2. (Petrides, C.J., dissenting) the Trial Judge had no power to make the amendment ; and
3. if such power did exist its exercise is discretionary and the trial Judge exercised his discretion judicially and correctly.

There is no necessity to set out the facts. A. W. Kojo-Thompson for Appellant.

A. Sawyerr for Respondent.

The following judgments were delivered :KINGDON, C.J., NIGERIA.

The plaintiff, Mrs. Sophia Malm, sued the defendant, Maurice Meyer Wulff, in the Native Tribunal of Osu, Ga State. The writ is in the following form :—

CIVIL SUMMONS.

Suit No. 142/36.

IN THE NATIVE TRIBUNAL OF OSU,
GA STATE,

GOLD COAST COLONY.

Mrs. Sophia Maim, Plaintiff Between {and

Maurice Meyer Wulff, Defendant.

To Maurice Meyer Wulff of Osu-

You are hereby commanded to attend this Tribunal at Osu on Tuesday the 3rd day of March, 1936, at 8.30 o’clock a.m. to answer a suit by Mrs. Sophia Malm of Osu against you.

The Plaintiffs claim is to establish ownership and possession of House No. E. 21/8 situate lying and being at Osu the property of her deceased father Dick Otto Meyer of which the Defendant has for some time and up to date been interfering unduly.

Take Notice : If you do not attend the Tribunal may give judgment in your absence.

On the application of the defendant, the Provincial Commissioner’s Court, acting under powers conferred upon it by section 71 of the Native Administration Ordinance (Cap. 111), made the following order on the 8th May, 1936 :-

” In view of the foregoing the Court considered that it would be unwise for the Osu Mantse to hear the case and orders that the case before the Tribunal be stopped and transferred to the Divisional Court for hearing and determination.”

In the Divisional Court, after several adjournments in the hope of settlement, the case came before Bruce, J., on the 5th April, 1937. Plaintiff’s Counsel, after opening his case, asked the Court to act upon section 76 of the Courts Ordinance, 1935, and transfer the case for deciding ownership to an independent Native Court. Defendant’s Counsel objected and the Court refused the application. There is no appeal on this point.

After hearing defendant’s Counsel’s plea in answer, plaintiff’s Counsel asked that the writ might be amended to read : ” Mrs. Sophia Malm, for herself, and as head of the family of Dick Meyer.” The application was made under Order 26 of Schedule 3 to the Courts Ordinance, 1935, which reads as follows :—

” The Court may at any stage of the proceedings, either of its own motion or on the application of either party, order any proceeding to be amended, whether the defect or error be that of the party applying to amend or not and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the fair trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just.”

Counsel for defendant opposed the application, pointing out ” that although Court has power to amend writ, this should not be done, as it would alter the whole character of the claim—this claim is to establish the ownership and possession of this house by Mrs. Sophia Malm, personally, and not as part of family property.”

The Judge ruled : ” I will not grant an amendment of the summons, the terms of which have been supported by the opening statement of Counsel for the plaintiff, and which was issued by the original Native Tribunal, and I conceive that it is my duty to hear this -se in the form in which it was transferred to the Supreme Court by the Native Tribunal.” Thereupon plaintiff’s Counsel said that he did

not desire to call any evidence, or proceed further with the case. The case was struck out, with costs against the plaintiff.

The plaintiff sought for and obtained special leave to appeal against the ruling refusing the amendment of the Writ. He filed the following grounds of appeal .—

1. That the learned Judge should have granted the application for leave to amend the writ.
2. That the refusal to grant the amendment was against the established practice of the Court below.

8. That the learned Judge was wrong in law in refusing to grant the application for the amendment.

4. That the learned Judge was wrong in holding that it was his duty to hear the case in the form in which it was transferred to the Supreme Court.
5. That the ruling was otherwise erroneous.
6. That the learned Judge was wrong in law in striking out the case on the opening statement of Counsel.

As to the last ground it is sufficient to say that no leave (or special leave, which would have been necessary) has been obtained to appeal against the order striking out the case and no appeal on that point is before this Court.

The other five grounds are all the same and attack the ruling refusing the amendment of the writ.

I am of opinion that the appeal should be dismissed for three reasons.

First. The case having been struck out there is no case pending in the Court below in respect of which an interlocutory appeal can be brought to this Court. If the appellant wished to appeal against the ruling her Counsel should not have intimated discontinuance of the suit ; and if, after striking out, the appellant changed her mind, it was essential that she should get the case relisted before she was in a position to bring this appeal.

Secondly. I am of opinion that the Court below had no power to make the amendment prayed. It is, in my view, a question of jurisdiction. In this case the Court only derives its jurisdiction to hear the suit at all from the order of transfer made by the Provincial Commissioner’s Court. This order specifically transfers to the Divisional Court the case before the Tribunal, i.e. the case between Mrs. Sophia Maim, plaintiff, and Maurice Meyer Wulff, defendant ; that case and no other ; and it is only over that case that the Divisional Court has jurisdiction. Now, in the eyes of the law, Mrs. Sophia Mahn in her personal capacity only is a different person from ” Mrs. Sophia Maim, for herself, and as head of the family of Dick Meyer.” Let us call the different legal persons ” A ” and ” B,” and the defendant ” X.” The Divisional Court has by a particular order had special jurisdiction conferred upon it to try a case between ” A ” and X.” It cannot,

in my view, by making an order purporting merely to amend proceedings, ceedings, confer upon itself jurisdiction to try a case between ” B , and ” X,” which, under its ordinary powers, it has no jurisdiction to try.

Thirdly. Even if the Court below had the power to make the order prayed, the power was discretionary, and, in view of all the circumstances of the case, I consider that the Judge in the Court below, in refusing the application, exercised his discretion both judicially and correctly.

For these reasons I am of opinion as I have already stated that the appeal should be dismissed with costs.

YATES, J.

I concur.

PETRIDES, C. J., GOLD COAST.

I have had the advantage of seeing the judgment just read. I agree that the appeal should be dismissed for the first and third of the reasons given therein, but not for the second.

This case started in the Native Tribunal of Osu. While in that Court the writ could have been amended and parties added in accordance with the rules and practice in force therein. These rules are by section 106 of the Courts Ordinance, in so far as is practicable and local circumstances permit, the Supreme Court rules.

When the case was transferred to the Supreme Court it’became subject to the Rules of the Supreme Court, for they apply ” in all causes and matters whatsoever in or with respect to which those Courts respectively have for the time being jurisdiction ” (section 107 (1) (a) of the Courts Ordinance). The transfer gave this Court jurisdiction to hear the suit transferred subject to the Rules of the Supreme Court. Once this Court was seised with jurisdiction it has power to amend the writ of summons and should do so for the purpose of determining in the existing suit the real questions or question in controversy between the parties (Order 26 of Schedule 8 of the Courts Ordinance, 1935). Writs in Native Courts are often quite unintelligible, and it is obviously the duty of the Court to so amend the writs as to make them intelligible and to show the real cause of dispute. This is often done by the ” opening ” of both Counsel, which is in effect an oral pleading.

By Order 8, Rule 5 of Schedule 3 of the Courts Ordinance, where it shall appear to the Court at or before the hearing of a suit that all the persons who may be entitled to, or who claim some share or mterest in the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties the Court may direct that such parties shall be made either plaintiffs or defendants in the suit as the case may be.

By Order 3, Rule 1 of Schedule 3 of the Courts Ordinance where the plaintiff sues in any representative capacity it shall be expressed on the writ. In this case the fact that plaintiff was suing in a representative capacity as well as in her own right was not so stated in the original writ. That the plaintiff would have been entitled to ask leave to amend the writ if the suit had continued in the Native Tribunal cannot be doubted. Nor can it be doubted that she would have had such right had it started in the Supreme Court.

Inasmuch as all transferred cases are by reason of sections 106 and 107 (1) (a) of the Courts Ordinance and Rule 1 of Schedule 3 of that Ordinance subject to the rules governing actions commenced in the Supreme Court, I am of the opinion that the Court below had power to make the amendment sought.

Great indulgence is exercised in regard to pleadings in Native Tribunals. If an action started in a Native Tribunal is nominally one for trespass and is transferred to this Court, can it be said that if the real cause of action is one for declaration of title and not trespass, the Divisional Court is made bound by the original writ and is unable to decide the real issue between the parties because the cause of action transferred was one of trespass and not title ? In my opinion the answer to that question is in the negative.

Although the writ was in form an action by Mrs. Sophia Malm to establish in her favour the ownership and possession of the house the property of her late father Dick Otto Meyer, I think the Court had power under the Rules of the Supreme Court to amend the proceedings so that the real issue whether the house belonged to the defendant or to the plaintiff in her own right or as head of the family of Dick Otto Meyer might be determined.

For these reasons I think the trial Judge had power to make the amendment sought.