Appeal Court, 21st May, 1940.
Appeal from a decision of the
Provincial Commissioner's Court
dismissing an appeal from the Ga
Mantse's Tribunal-meaning of
word "decision" in Sec.
78 of the N.A. Ordinance.
Held: (1) The Ga Mantse's
tribunal was correct when making
the Order to the effect that the
proceedings before the Osu
Mantse's tribunal should be
stopped.
(2) (obiter)
that the word" decision" refers
to interlocutory as well as
final decisions, and that
appeals against interlocutory
judgments as to jurisdiction are
desirable for the sake of
expedience.
There is no need to set out the
fact-
K.
A. Bossman
for Appellant.
E. C. Quist for
Respondents.
The following joint judgment was
delivered :-
KINGDON, C.J., NIGERIA, PETRIDES,
C.j., GOLD COAST AND GH.AHAM
PAUL, C.J .. SIERRA LEONE.
This appeal arises out of a suit
brought originally in the Osu
Mantse's Tribunal about rights
to certain land. The Defendants,
the present Respondents, before
the hearing began in the Osu
Mantse's Tribunal, had applied
to the Provincial Commissioner's
Court to transfer the suit to
the Ga Mantse's Court on the
ground that the Osu Mantse's
Tribunal had no jurisdiction.
The Provincial Commissioner's
Court refused to transfer the
suit saying: " There is nothing
to prevent the aggrieved party
from pleading non-jurisdiction
before the Tribunal (Osu) and
that matter can first be
thrashed out by the appropriate
Tribunal if it is proved to be
necessary ".
On the suit coming on in the Osu
Mantse's Tribunal the
Defendants, the present
Respondents, took objection that
"the Tribunal has no
jurisdiction to try the case
herein as they are interested in
the matter in question as Osu
joined them in 1933 ". The Osu
Mantse's Tribunal in a " ruling"
repelled this objection on the
ground that it was the same as
the application which had been
made to, and refused by, the
Provincial Commissioner's Court.
It was ordered that the hearing
of the suit should proceed and
the hearing was begun.
Against the "ruling" of the Osu
Mantse's Tribunal the
Defendants-Respondents appealed
to the Ga Mantse's Tribunal
under section 78 of the Native
Administration Ordinance, Cap.
76. The Ga Mantse's Tribunal
after hearing parties and
viewing the land on this appeal
came to several conclusions of
fact and law :-
(1)
"The attitude of the Tribunal
below makes it abundantly clear
that it was interested in the
matter ..
(2)
"The same persons are being
wanted to determine whether the
land was Plaintiffs or not ... ,
It is natural therefore that the
interestedness of the Osu
Tribunal will prejudice the
cause of justice".
(3) " ....
the disputed land is outside the
jurisdiction of the Osu
Tribunal. Section 49 (If the
Native Administration Ordinance
therefore debars the Tribunal
from hearing this cause".
Having come to these conclusions
the Ga Mantse's Tribunal ordered
that the further hearing of this
case before the Osu Mantse's
Tribunal be stopped in
accordance with section 74 of
the Native Administration
Ordinance with liberty to apply
it) any other Court or Tribunal.
Against that order the present
Appellants appealed to the
Provincial Commissioner's Court,
not attacking at all in the
grounds of appeal the merits of
the order but only the power of
the Ga Mantse's Tribunal to deal
with such an appeal or to make
such an order.
The ratio decidendi of
the judgment of the Provincial
Commissioner's Court on this
appeal is difficult to
understand. He expressly upheld
the contention of the Appellants
in his Court that no appeal lay
to the Ga Mantse's Tribunal
under section 78 in respect of
an interlocutory ruling made by
the Osu Tribunal. Having so
expressed himself he proceeded
to dismiss the appeal before
him.
Against that judgment the
Appellant has appealed to this
Court. In this Court
Respondents' Counsel stated that
he sought to defend the order of
the Provincial Commissioner's
Court dismissing the appeal but
not the reasoning on which it
was based.
Appellant's Counsel in this
Court had two main contentions
:-
(1)
That the word" decision" in
section 78 meant only "final
decision" and not interlocutory
decision .. and that, therefore,
no appeal lay against the Osu
Tribunal's interlocutory order;
and
(2)
That the Ga Mantse's Tribunal
could not in an appeal brought
under section 78 make an order
by virtue ()f its powers under
section 74.
It is perfectly clear that
whenever and however a Paramount
Chief's Tribunal is satisfied of
the facts necessary for action
under section 74 it is the duty
of the tribunal to take such
action. would apply if the
occasion of the Paramount
Chief's Tribunal being
satisfied of these facts were
the hearing of an appeal quite
incompetently brought before it.
It is clear therefore that t
order made by the Ga Mantse's
Tribunal in this case under
section 74 was quite in order.
It is unnecessary therefore in
this appeal to decide the
question raised as to the
meaning of the word" decision"
'in section 78, b it is perhaps
as well to indicate-though
obiter dictum
in this appeal -that it is
difficult to see how the word "
decision", unqualified as it is,
can refer only to "final
decision". It may be,
Appellant's Counsel suggested,
that inconvenience may arise fro
the application of this section
to all interlocutory decisions,
b if so, it is for the
Legislature to take steps to
deal with the inconvenience. It
may be observed, on the other
hand, in regard to the
particular facts of this case,
that it does seem to be on
reasonable that a lower Court
should not be allowed to put t
parties to the trouble and
expense of a long trial in a
case where jurisdiction is
questioned and where after final
judgment on appeal
it may be found necessary to
-have the same long trial all
over again in the proper Court.
Appeals against interlocutory
judgment as to jurisdiction
would appear to be desirable.
This appeal is dismissed with
costs. The order of the Court
below as to costs is set aside
and the present Respondents
awarded costs in the Ga Mantse's
Tribunal. in the Provincial
Commissioner's Court and in this
Court. The costs in this Court
are assessed at £11 14s. 6d.