Jurisdiction of Magistrate under Schedule II, Order 9-Real nature of claim-Breach of a. contract to be performed within the jurisdiction-Objection under Order 9, rule 5-0veTTuled by Order of Retainer under rule 6 of Order' 9-No appeal from this Order-Remedy application for transfer.

Held: Magistrate had jurisdiction. Case remitted for appeal on other

grounds to be determined.

H. F. Ribeiro for Plaintiff-Appellant.

R. E. Phipps for Defendant-Respondent.

The following judgments were delivered:-

GRAHAM PAUL, J.

This suit was originally taken in the Police Magistrate's Court, Accra, against two defendants, Koom Assan II, Omanhene of Breman of Essikuma and Kwesi Baah, Tufuhene of Essikuma. On 28th September, 1932, Kobina Nyanie, Oheneba of Essikuma, was joined as a third defendant.

The claim was against the defendants jointly and severally for £200 being amount lent to the defendants under a Promissory Note dated 7th October, 1929.

On 20th December, 1932 judgment was given for the plaintiff for the £200 against Oheneba Kobina Nyanie as "Regent" of the Stool of Essikuma and Kwesi Baah as Tufuhene, no order except giving him costs being made in regard to Koom Assan II.

On 28th December, 1932 a motion to set aside the judgment against Oheneba Kobina Nyanie was refused by the Police Magistrate.

On 18th January, 1933 a motion on behalf of Oheneba Robina Nyanie for review of the decision of the Police Magistrate of 28th December, 1932 was allowed and that decision was set aside and the cause ordered to be reheard. Against that order the plaintiff appealed to the Divisional Court. The appeal was dismissed.

The suit was then reheard and in the course of the rehearing ­Oheneba Kobina Nyanie was dismissed from the suit and Omanhene Ofabir Yebuah II was joined as a defendant.

 

On 29th November, 1933 judgment was given for plaintiff for £20(} against Ofabir Yebuah II in his official capacity as representing the Stool and State of Essikuma Bremang. The suit was dismissed as regards the other defendants.

At the outset of the second hearing Counsel for Ofabir Yebuah II pleaded that the Court had no jurisdiction to hear the case as the defendants resided in the Central Province and the proper Court would be one in the Central Province.

In regard to that objection the learned Police Magistrate ruled as follows :_H This is a case cognisable by this Court. The loan H was made in Accra ". Against the judgment of 29th November, 1H33 the defendant appealed to the Divisional Court which allowed the appeal, the learned Judge finding that Counsel for defendant had pleaded to the jurisdiction at the hearing of the ease in his opening statement and that Schedule II, Order 9, rule 5 applied and the Court had no jurisdiction to try the matter, the defendants being out of jurisdiction.

Against that judgment of the Divisional Court the plaintiff has appealed to this Court.

In my opinion the ruling given by the learned Police Magistrate on the plea of the jurisdiction taken by the defendant's Counsel at the opening of the hearing was a ruling under Schedule II, Order 9, rule 3 which is as follows:-

" All suits for specific. performance, or upon the breach " of any contract, may be commenced and determined " in the province in which such contract ought to "have been performed or in which the defendant " resides ".

The claim in the writ is for money " lent to the defendants under a Promissory Note ". But. from the evidence it. appears that the  real transaction was somewhat different from that.. There was only .£100 Ient. At the' time the £100 was lent it was contracted between the parties that the £100 should be repaid on its due date with £50 interest .when the due date arrived neither the principal nor the interest was paid. Instead the parties made a new contract whereby in consideration of an extension of the time for payment. by the lender the borrowers agreed to pay an additional sum of £50 at the expiry of the extended time-i.e., on 31st. December, 1930. That contract between the parties was embodied in Exhibit. " A ".

Exhibit " A " also provides for the retention by the lender as security of certain gold ornaments which had been handed over by the borrowers at the time of the original loan of £100.

The borrowers failed to carry out. their contract and upon the breach the present suit has been brought. To my mind the present suit is essentially a suit upon the breach of a contract. Under Schedule II, Order 9, rule 3 such a suit can. be commenced and determined in the province in which  such contract. ought. to have been performed.

If the claim is regarded purely as a claim on a promissory note dishonoured by non-payment the claim is still upon breach of contract, and by section 57 of the Hills of Exchange Ordinance what can be claimed is liquidated damages upon breach of contract .

From the terms of Exhibit " A " it sufficiently appears that the contract ought to have been performed in Accra. The contract was made in Accra. It was a contract to pay money to the 'plaintiff who resided in Accra. There is nothing in Exhibit " A ", or in the evidence, to suggest that the contract was to he performed elsewhere than in Accra, and that being so it must in my opinion be taken that the contract was to be performed in Accra.

Taking that view of the transactions between the parties I think the learned Police Magistrate was right in his finding which I have quoted. I can see nothing in that finding to suggest that it was made under rule 5 of Order 9. It was, I think, a finding made-and quite properly made-under rule 3 of the Order. It is therefore in my opinion unnecessary to consider the effect of rule 7 of t he Order.

I think this ·appeal should be allowed with costs to the appellant in this Court and in the Divisional Court; and that the case should be remitted to the Divisional Court to hear such argument as may be offered, and give judgment upon the Grounds of Appeal filed in the Divisional Court on 31st January, 1934.

AI'fKEN, J.

This suit has had many vicissitudes, but fortunately it is unnecessary for me to recount them all. In the Writ of Summons, which was issued a" long ago as the 9th of June, 1932, the plaintiff claimed against the first two "'defendants, jointly and severally. £200 " being amount lent to the defendants under a Promissory "Note dated the 7th day of October, 1929". The suit was entered on undefended list: but leave to defend was given and one Oheneba Robina Nyanie was joined as a co-defendant. On the 20th of December, 1932, the learned Police Magistrate, Mr. C. B. Pearson, gave judgment for £200 against Oheneba Kobina Nyanie as " Regent" of the Stool of Essikuma, and against Kwcsi Baah, as Tufuhene of that Stool. An application was made to the Magistrate to review his decision, which he first of all refused and then granted. Eventually, on the 18th of January, 1933, the Magistrate reviewed his decision to such purpose that he ordered it to be set aside and the cause reheard. From this order. the plaintiff appealed to the Divisional Court, but in vain, and 'on the 11th of October, 1933, the case came before Captain William Price J ones, who had in the interval succeeded Mr. Pearson in the office of Police Magistrate, Accra. On that date the defendant Oheneba Robina· Nyanie was dismissed from the suit, and the Omanhene Orabir Yebuah II was joined as a co-defendant in his place. When the Omanhene had been served with the writ of summons and certain affidavits sworn by Oheneba Kobina Nyanie, what I may term the rehearing proper was commenced on the 11th of November, 1933.

On that date Mr. Asafu-Adjaye, on behalf of the Omanhene OIabir Yebuah II, pleaded specially to the jurisdiction under and in accordance with the provisions of rule 5 of Order 9 in the second schedule' to the Supreme Court Ordinance. This plea in that respect is recorded in the following terms:-

" We plead this Court has no jurisdiction to hear this case " inasmuch as defendants reside in Central Province. " The proper Court would. be a Court in. the Central " Province ".

'rhe learned Police Magistrate overruled that plea in two brief sentences: -" This is a case cognisable by this Court. The loan " was made in Accra". The hearing then proceeded on the merits, and on the 29th of November, 1933, the Police Magistrate delivered a carefully considered judgment which ended. as follows: -

" I give judgment for plaintiff for the £200 against Ofabir " Yebuah II in his official capacity as representing " the Stool and State of Essikuma-Bremang, with "costs for the plaintiff against him-Costs to " be taxed.

"I further declare that the trinkets pledged by first " and second defendants for the loan, and now in the " possession of plaintiff, were legitimately pledged on " behalf of the stool and state of Essikuma, and are " subject, if plaintiff so wishes, either to (1) fore­"dosure under the document Exhibit 'A', or to " (2) sale by way of Fi Fa in. the event of the plaintiff •• in this case seeking a writ of Fi Fa against the •• moveable property of the third defendant Ofabir ., Yebuah II as representing the stool and state of " .Essikuma-Bremang ".

:From this judgment the Omanhene Ofabir Yebuah II appealed to the Divisional Court, and that appeal was argued before 'Yates, J. at Accra on the 23rd of June, 1934. There were several grounds of appeal, but Mr. Phipps, for the appellant, argued first of all that the writ of summons in. the case had been issued for service outside the particular jurisdiction of the Police Magistrate, Accra, without the leave of the Court, and was therefore a nullity: in that respect he relied on Order 2, rule 5 of the second schedule to the Supreme Court Ordinance. He argued secondly that the Police Magistrate had had no jurisdiction to hear the case as it ha{\ been commenced in the 'wrong province, and in that respect he relied on the Omanhene Yebuah II's plea in objection to the jurisdiction which I have already mentioned and Order 9 rule 5 of the said second schedule. The learned Judge appears to have made no comment on Mr. Phipps's first point, but he upheld his contention on the second point and allowed the appeal "with .Abba costs to be taxed" . .From this decision the plaintiff has appealed to use, and as Mr. Phipps made no attempt to argue his first  point before us we may assume that it has been abandoned. Seeing  that the original writ of summons was issued so long ago as the  9th June, 1932, and that no question at all was raised as to its validity until  the 8th of .June, 1934, that is almost exactly until It en, . The years later, it appears· to be too late to consider such an objection now.

Remains, however, the question of jurisdiction, and that requires careful examination.

Now Police Magistrates and District Commissioners within their own districts constitute branches of the Supreme Court of this Colony, and to the extent of the jurisdiction conferred upon them, and subject to the Commissioners and Police Magistrates Ordinances, they are deemed to have, and may exercise, the powers of a Judge of the Supreme Court. In accordance with the pro­visions of section 15 of the Supreme Court Ordinance the procedure and practice in civil cases in their Courts are regulated by the Supreme Court Ordinance itself, with which the Commissioners Ordinance. is to be read as one, and by the rules set out in the first and second schedules to the Supreme Court Ordinance which, by virtue of section 87 of that Ordinance, have the same force and effect for all purposes as if they had been made by Ordinance. It is therefore necessary to give full effect to the provisions of those rules, and if there should be any seeming discrepancy between their provisions and the provisions of the Ordinance itself and the Commissioners Ordinance, we must endeavour to arrive at some construction which will enable all such provisions to operate according to the plain and natural meaning of the words employed.

In this case a special objection to the jurisdiction was pleaded under rule 5 of Order 9, but the learned Magistrate made an Order that the case should be retained and proceed in his Court in which it had commenced. The question then arises, had he the power to make such an order, and in my opinion he had by virtue of the combined operation of rules 6 and 7 of that Order. It has been argued that since, by virtue of Part V of the Supreme Court Ordinance, a Magistrate has no power to order a transfer, therefore he has no power to make an order of retainer, but that is clearly a non sequitur. The powers of transfer and retainer are quite different powers, and the legislature may well have been willing to entrust a Magistrate with a power of retainer though not with a power of transfer. Then again, it is argued that since section 7 of the Commissioners Ordinance subjects every District Commis­sioner (and Magistrate) to the orders and directions of "the Court", which expression is there used apparently as a synonym for the Chief Justice or a Judge of the Supreme Court, therefore they cannot make an order of their own volition although plainly empowered so to do by the rules of the Supreme Court. If we were to accede to such an argument it is difficult to see what u District Commissioner or Magistrate could do without first applying to the Chief Justice or a Judge for his consent. To my mind it is quite possible to give full effect to the provisions of that section without detracting from the powers conferred on a Magistrate by rules 6 and 7 of Order 9 of the second schedule to the Supreme Court Ordinance