Rojo Etsia v. Kwa Amissah & ano.

Administration Ordinance, and that this Court has therefore no jurisdiction to try this case.

J. B. Hyde and K. A. Korsah for the Defendant-Appellant.

C. F. H. Benjamin for the Plaintiff-Respondent.

The following judgment of the Court was delivered by the President Deane, c.]., and concurred in by Michelin and Sawrey­Cookson, ].

DEANE, C .J. THE GOLD COAST COLONY.

This is a case transferred by the Provincial Commissioner to the Divisional Court for hearing under section 71 of the Native Administration Ordinance. The learned Judge when the case came before him ruled that the Provincial Commissioner could not refer a matter to the Divisional Court unless there was no Native Tribunal which had jurisdiction to hear the matter. I cannot agree with him. Section 71 (c) it seems to me gives a very large power to the Provincial Commissioner to transfer any case from a Native Tribunal to a Divisional Court. When there is a competent Native Tribunal he has the power to transfer and that power is exercised daily and indeed is not questioned. If therefore we were to accede to this contention it would mean that we would curtail the power of the Provincial Commissioner to transfer merely because there might possibly be another Native Tribunal which might have jurisdiction over the case, and thus make the Provincial Commissioner's action a subject of enquiry as to its reasonableness on· every occasion. In my opinion the Provincial Commissioner having transferred the case under section 71 of the Native Administration Ordinance the Divisional Court was bound to enquire into it under section 72 of the same Ordinance and the reasonableness of the order of transfer before the Court was not open to question.

Appeal allowed with costs £16 16s. and case remitted to the lower Court to be heard and determined.

  Practice-Native Administration Ordinance-Power of Provincial Commissioner to transfer to Divisional Court.

Under section 71 of the Native Administration Ordinance (Cap. Ill) a Provincial Commissioner had transferred a case to a Divisionai Court. The Court held that under the circumstances the transfer was unreasonable and refused to hear the case.

On appeal, it was held that once a Provincial Commissioner has exercised his discretion by transferring a case, it is not open to the Divisional Court to consider the reasonableness of his action.

The following judgment was delivered in the Court below :­YATES, ].

In this case, which has been transferred by the Provincial Commissioner of the Central Province to this Court by virtue of section 71 of the Native Administration Ordinance ~o. 18 of 1927. Mr. Benjamin on behalf of the Plaintiff moved that the Order made by the Provincial Commissioner be sent back to him for review under section 7 of the District Commissioners' Ordinance. I am satisfied that the District Commissioners' Ordinance does not apply. There is however another aspect of the case to be considered and that is, has the Divisional Court any jurisdiction in this matter as it stands? Section 71 of the Native Administration Ordinance gives power to the Provincial Commissioner to transfer any civil cause or matter or question commenced before a Native Tribunal to the Divisional Court under certain circumstances which are set out in sub-section " C " of the same section.

The meaning of section 71 is, in my view, that if there is no available Tribunal, or if the case is one which cannot be tried by the Police Magistrate or District Commissioner, then the Provincial Commissioner may confer jurisdiction upon the Divisional Court to hear and determine the matter, and I rule that it is a condition precedent to the Order being made that it be shewn, that there is no Court or Tribunal which can properly enquire into, try or determine the matter, and that unless the Order of Transfer shows this by its terms, no jurisdiction is conferred upon the Divisional Court. In this particular case, moreover, the Affidavit of the Defendant Nyika clearly shews that the matter could be tried by the Provincial Council. That being so the matter should have been transferred to it under section 7lA.

I therefore further rule, by virtue of the proviso to section 72, that the Order of Transfer made in this case has not been made in accordance with the provisions of section 71 of the Native Rojo Etsia v. Kwa Amissah & ano. Administration Ordinance, and that this Court has therefore no jurisdiction to try this case.