pages.gif

Appeal Court 19th April, 1939. Appeal from judgment of Divisional Court.

Claim for possession-Jurisdiction of Supreme Court in civil causes in Ashanti-Section 17 (b) of the Courts Ordinance (Cap. 4)Section 35 of the Native Courts (Ashanti) Ordinance (Cap. 80).

Held: That title or right to occupation of land in Ashanti is a matter for the competent native Court and that the Supreme Court had no right to adjudicate thereon.

Held further: That the fact that land at Kumasi belongs to the Government and that consent has been obtained from the Government for the transfer of land does not give the Supreme Court jurisdiction to adjudicate on .title or right to occupation of such land.

Judgment of Court below set aside and case remitted to that Court to stop further progress of the case and refer parties to a competent tribunal.

There is no need to set out the facts.

E. O. Asafu-Adjaye for Appellant.

T. Hutton-Mills for Respondent.

The following judgments were delivered :STROTHER-STEWART, J.

This is a case in which the plaintiff-respondent claims recovery of possession from the defendant-appellant of a piece or parcel of leasehold premises known as Plot No. 9 situate at Bimpeh Hill, Ejisu Road, Kumasi which plaintiff-respondent had bought at a public auction on the 4th day of May, 1935, when it had been put up for sale by Messrs. J. Lyons & Co. Ltd., Kumasi, as mortgagees.

*The first point raised in this case is whether the Divisional Court has jurisdiction to try such a case, and I think it goes to the root of the matter so far as this Court is concerned.

Section 17 (b) of the Courts Ordinance (Cap. 4) reads as follows :--

" 17. Notwithstanding anything in this Ordinance contained the Court shall not exercise jurisdiction

"(b) in Ashanti in any civil cause or matter subject to the provisions of section 35 of ·.the Native Courts (Ashanti) Ordinance, save and except in accordance with the proviso to such section, or in any cause or matter within the jurisdiction conferred on the Ashanti Chief Commissioner's Court by sections 62 and 64 of this Ordinance."

* But for the distinction between" possessing" and" exercising" jurisdiction ~e, Omanhene Nkyi Ababio v. Kwamin Ackumpong reported in 6 W.A.C.A.

Section 35 of the Native Courts (Ashanti) Ordinance (Cap. 80) reads as follows :-

" Whenever it shall appear to the Chief Commissioner's Court or the Divisional Court, or a :Magistrate's Court that any civil cause or matter before it is one properly cognizable by a Native Court and that a Native Court with jurisdiction to try such civil cause or matter has been established under the provisions of this Ordinance, such Chief Commissioner's Court or Divisional Court or Magistrate's Court as the case may be shall stop the further progress of such civil cause or matter before it and refer the parties to a competen1i Native Court as the case may be; and the Court shall thereupon order such costs as it shall deem fit.

"Provided always that the obligation as to stoppage and reference imposed upon the Chief Commissioner's Court and such Divisional Court or Magistrate's Court by this section shall not apply in the following cases :"(I) Where it is shown to the satisfaction of the Chief Commissioner's Court

or such Divisional Court or Magistrate's Court as the case may be that the competent Native Court is for the time being not functioning; or

"(2) If the cause or matter shall have been transferred to the Chief Commissioner's Court or such Divisional Court or Magistrate's Court under section 22; or .

"(3) If the cause or matter is one of an interpleader character in which the action of a Sheriff or of a Deputy Sheriff involved; or

"(4) If the cause or matter is in the nature of a set-off, counterclaim., or cross-action instituted in the said Chief Commissioner's Court, or Divisional Court, or Magistrate's Court as the case may be in connection with a cause or matter pending in such Court; or

"(5) In the case of any cause or matter which shall immediately prior to the commencement of this Ordinance have been pending in the Chief Commissioner's Court, or Divisional Court, or Magistrate's Court. But in the case of any such cause or matter so pending as aforesaid the Court shall nevertheless have power at its discrption, if it shall see fit so to do, to stop the further progress of such cause or matter before it, and to refer the parties to the competent Native Court ; and on any such stoppage and reference being made the provisions in this section contained relating to costs shall thereupon apply with respect to such stoppage and reference."

It has already been decided by this Court in Kofi Fofie, Administrator of Effuah Frimpomah, deceased, v. Kwasi Bremang, Ama Asiamah, and Kwesi Amufah, on an appeal from a judgment of Pearson, Acting J., dated 20th August, 1936, that title or right to occupation of land is a matter for the competent Native Court. This was decided by this Court on 25th November, 1936.

Now the present case is a claim of title or right to occupation of land, and it is between natives. It does not appear to come within the proviso to section 35 of the Native Courts (Ashanti) Ordinance (Cap. 80) just read. It differs from the case just referred to in that it relates to land in Kumasi. It is admitted by Counsel that land in Kumasi belongs to the Government, and a consent has to be obtained from the Government in each case where such land is transferred. Such a consent appears on page 32 of the record of the present proceedings. Does the fact that such a consent has to be obtained from the Government in each transaction give the Divisional Court jurisdiction, I do not think so. There is certainly no provision in the Ordinances relating to Ashanti giving such jurisdiction. The Government is not a party to the present case, and they -are certainly not involved in its niceties. This does not mean that the competent Native Court should not, therefore, take into consideration any deeds documents or consents which may be relevant to the right decision of the case before them whether they be in accordance with English law, or not, provided they are valid in accordance with the law regulating Ashanti.

From what I have said it will be noted that the law as it exists at present in Ashanti is not the same as that which applies in the Colony by virtue of the proviso to section. 48 (1) of the Native Administration (Colony) Ordinance (Cap. 76) whereby it is provided that any cause or matter where it appears either from express contract, or from the nature of the transactions out of which such cause or matter shall have arisen that the parties expressly, or by implication, agreed that their obligations in connection with such transactions should be regulated substantially according to the provisions of some law or laws other than native customary law, or where otherwise some other such law or laws as aforesaid is or are properly applicable thereto, is excepted from the jurisdiction of a Paramount Chief's Tribunal.

I consider, therefore, that the case should be remitted to the Court below to stop the further progress of the case, and that the parties should be referred to a competent tribunal.

The Judgment of this Court is that the judgment of the Court below is set aside and the case remitted to that Court to stop the further progress of the case and refer the parties to a competent Tribunal. The appellant to have his taxed costs in the Court below and his costs in this Court assessed at £42 2s.