This is an appeal from the
decision of the West African
Court of Appeal pronounced on
the 9th May, 1933,(1) deciding
that the action, which had been
commenced in a Native Tribunal,
was not properly before such
tribunal and that its judgment
and all subsequent proceedings
amounted to a nullity but
awarding the respondent costs on
appeal and in the Courts below.
The proceedings were begun by
writ of. summons dated the 30th
January, 1931, in the Native
Tribunal of Cape Coast by the
appellant as plaintiff against
the respondent as defendant and
according to the appellant the
substantial question was whether
the land, the subject of such
action, was the property of the
family of the plaintiff or the
family of the defendant. The
writ, however, called upon the
defendant to establish his claim
to the land.
The Native Tribunal having given
judgment on the 31st October,
1931, in favour of the appellant
(plaintiff) with costs, the
respondent (defendant) appealed
to the Provincial
Commissioner's Court of the
Central Province. The Provincial
Commissioner, on the 22nd
August, 1932, gave judgment,
reversing the decision of the
Native Tribunal, in favour of
the respondent with costs. From
the judgment of the Provincial
Commissioner's Court the
appellant appealed to the West
African Court of Appeal and the
appeal came up for hearing
before that Court on the 4th
May, 1933.
(1) Reported in I W.,A.C.A:, p.
188.
On the 9th May, 1933, after
Counsel for the appellant had
addressed the Court at length,
it transpired that in 1926 the
Colonial Secretary of the Colony
had issued a notice under the
Public Lands Ordinance, lR7G
(now Cap. 142 of the Laws of the
Gold Coast Colony) to the effect
that the land, the subject of
the action, was required for the
use of the public service. What
happened then is shown by the
following note of the President
of the Court:-
~"Both Counsel agree that when
this suit was instituted,
proceedings under the Lands
Ordinance in which the defendant
Cooke was a claimant, were
pending in the Divisional Court
at Cape Coast, and had not yet
been determined, and are not yet
determined.
"Both Counsel agree that under
section 7 of the Public Lands
Ordinance, writ of summons could
not have been instituted in the
Native Tribunal until the
proceedings under the Public
Lands Ordinance had been
terminated.
'1'he Court adjourns for ten
minutes.
On resumption, the Court
delivers the following ruling:
By THE COURT.
Counsel for each side having
admitted to the Court that at
the time when the writ of
summons in respect of which this
appeal has been taken; was
instituted in the Native
Tribunal, proceedings were then
pending in the Divisional Court
of Cape Coast under section "l'
of the Public lands Ordinance
(Cap. 142) as amended by section
2 of Ordinance 17 of 1929 in
which the present defendant was
a claimant to the identical land
described in the writ of
summons, it is clear that under
'the provisions of the latter
section, such an action could
not be instituted until after
the proceedings before the
Divisional Court had been
terminated.
The action was therefore not
properly before the Native
Tribunal and any judgment upon
such an action was a nullity and
all the subsequent proceedings
thereon amounted to a nullity.
We consider that the respondent
(Cooke) should have his costs,
not only in this Court, but in
the Courts below.
The costs in this Court are
assessed at the sum of £33 8s.
6d. The Court below to carry
out;:"
From this decision the
,'appellant has brought the
present appeal. He has appeared
by counsel to argue that
notwithstanding the agreement
by his counsel before the Court
of Appeal that under section 7
of the Public Lands Ordinance
the action could not properly
have been instituted in the
Native Tribunal until the
proceedings under the Public
Lands Ordinance had been
terminated, it was open to him
to contend that both the
admission and the finding by the
Court of Appeal were erroneous
and that the appeal should have
been decided on the merits. The
respondent did not appear on
this appeal and their Lordship1>
have not had the advantage of
hearing an argument on his
behalf .
Their Lordships were not of
opinion that the judgment
appealed from could be regarded
in strictness as a consent
judgment. The decision on the
construction of the Ordinance
appears to be one for which the
Court took at least some
responsibility, and this is not
the less true because the
admission of counsel for the
appellant seemed to justify the
view expressed by the Court. In
these circumstances it seemed to
their Lordships desirable to
hear the question of
construction argued by counsel
for the appellant.
At the close of' this argument
it seemed clear to their
Lordships on a consideration of
the Ordinance as a whole and in
particular of sections () and 7
that, after notice had been
given by the Colonial Secretary
of the proposed acquisition of
the lands in question as lands
required
for
the service of the Colony, the
Divisional Court of the Gold
Coast was the proper tribunal to
determine the amount of
compensation due in respect of
the lands and also any case of
disputed interest in or title to
the lands. Under section 7 this
determination (subject to
appeal) is to be final and
conclusive as respects all
persons upon whom notices have
been served or who have appeared
and claimed. Payment of the
compensation to the person
appearing by the judgment of the
Court to have the best right
thereto is a complete discharge
to the Colonial Secretary, " but
shal1 not hinder any subsequent
proceedings at the instance of
any person having or al1eging
better right thereto as against
the person to whom such payment
may have been made," It is
possible that these sections do
not take away the right of the
proper Native Tribunal to
determine some temporary
question of possession or
receipt of rent or the like
arising prior to the conveyance
to the Colonial Secretary; but
in the present case it is to be
noted that the writ of summons
sought to establish the title of
the Anona family to the land and
t hat although the endorsement
on the writ i1J;elf stated that
the defendant was "involved in
litigation in the Divisional
Court, Cape Coast, with the
intent of alienating the said
land to himself and the family
he claims to represent and of
divesting the said Anona family
and their Stool of their rights
in the said land." In their
Lordships' view this question
was within the jurisdiction of
the Divisional Court by the
express language of the
Ordinance. To the knowledge of
the appellant there was a
proceeding pending before that
Court relating to the matter. 1£
the appellant for some reason
was too late to make a claim
before that Court he would still
under the words quoted be
entitled to make a claim against
the person to whom the payment
of the compensation may have
been made. In these
circumstances their Lordships
think that the proceedings
before the Native Tribunal were
misconceived and could have
served no useful purpose. It
does not seem to their Lordships
necessary to determine whether
the Native Tribunal was entirely
divested of jurisdiction in the
matter by the proceedings in the
Divisional Court since on any
view the proceedings in the
Native Tribunal should have been
stayed and the judgment of that
tribunal if not a nullity must
have been set aside. Their
Lordships do not think they are
called upon in the present case
to consider the precise, form of
the judgment under appeal since
they are satisfied that in
substance it is correct.
As regards the costs awarded to
the respondent by the judgment
it seems to their Lordships
sufficient to say that the costs
were in the discretion of the
Court of Appeal and their
Lordships do not consider that
there is any special
circumstance here which would
justify an appeal to His Majesty
in Council in respect of costs
alone.
Their Lordships have therefore
humbly advised His Majesty that
this appeal should be dismissed.
