Claim for ownership of land
originating in Native
Court-reheard by Court of Chief
Commissioner and amended by that
Court to include a larger
area-appeal from Chief
Commissioner's Court allowed .
. Held: The Order amending the
claim so as to cover an area of
land many times larger than that
covered by the original claim
was
ultra vires,
and the subsequent proceedings
were without jurisdiction and
void. The case to be reheard by
the Chief Commissioner's Court
on the original issue.
The facts are fully set out in
the judgment.
T. Hutton-Mills
for Appellant.
H. A. H. Banjamin
for Respondent.
The following joint judgment was
delivered :-
KINGDON, C.J., NIGERIA, PETRIDES,
C.]., GOLD GOAST AND GRAHAM
PAUL, C.J., SIERRA LEONE.
In this case the plaintiff in
the Asantehene's Court "A"
claimed" by oath the
ownership of a parcel of land
known as Kotafo and the
defendant also responced that
the said land is his property."
Kotafo (or as it is also called
in the proceedings " Kotofa ")
is, as is agreed by Counsel in
this Court, a very small area of
land the importance of which
lies in the fact that it has
been used as a chief's burial
ground. After a full and careful
hearing and sending viewers to
inspect the land the Asantehene'-s
Court " A " gave judgment for
the plaintiff expressing itself
as " satisfied that Kotofa is
the property of the Plaintiff's
Stool" That Court was in fact
careful to confine its judgment
to the question actually in
dispute before it, namely the
ownership of Kotafo land,
although in order to arrive at
its decision it had had under
consideration a very much larger
area.
The defendant appealed to the
Court of the Chief Commissioner
of Ashanti, which, acting under
the powers conferred upon it by
section 27 (1) (a) of the
Native Courts (Ashanti)
Ordinance (Cap. 80), decided to
re-hear the whole case. The
Acting Assistant Chief
Commissioner, who constituted
the 0ourt, after a survey had
been made, considered that the
dispute covered a very much
larger area than Kotafo land-in
fad two areas each of them
covering many -square miles. He
proposed to take into
consideration the whole of both
areas. On the
defendant-appellant of jetting
that the Court had" no power to
adjudicate as to the ownership
of any part of the land other
than that portion of the land
for ,which the Court below gave
judgment," the Acting Assistant
Chief Commissioner of Ashanti
reserved that point of law for
the consideration of the Supreme
Court. He submitted it to the
Divisional Court at Kumasi and
Bannerman, J. expressed the
following opinion :_
•. With reference to your stated
case in the above-mentioned
suit. I am of the opinion that
you can make the necessary
amendment on your own motion if
you think fit and hear the case
de novo .
•. 2. In my view Order 52 Rule
19. together with Order :26 Rule
I, invests you with the
necessary judicial powers .
•. 3. I do not consider it
necessary that you should invoke
the aid of section Ii:! (I) in
this case. The rules I have
referred to afford you ample
powers." .
We know of no power under which
the point was thus submitted to
the Supreme Court or under which
the opinion was expressed. or,
with all respect to the learned
Judge, do we agree with it.
Order 52 Rule 19 does not apply
to the Chief Commissioner's
Court since " the Appeal Court"
therein referred to means a
Divisional Court of the Supreme
Court (see Rule 1 of the same
Order). We agree however that
section 62 (1) of the Courts
Ordinance (Cap. 4) docs not come
into the question at all, since,
throughout, the Chief
Commissioner of Ashanti's Court
was functioning as an Appellate
Court and not as a Court of
first instance.
Acting upon the opinion
expressed by the Divisional
Court, the Acting Assistant
Chief Commissioner of Ashanti,
proceeded to amend the claim so
as to cover the ,,,hole of the
two larger areas already
referred to. He then heard the
case in regard to the amended
claim, and gave a judgment
declaratory of the boundaries
between the parties in respect
of the whole of the two larger
areas. In regard to Kotafo land
he came to the same conclusion
as the Asantehenc's Court" A " .
The defendant now appeals to
this Court on a grounds. but we
have thought it necessary to
hear on one only, namely 4
(f) which read
The
procedure adopted by the Court
below at the hearing of the
Respondent's claim against the
Appellant was wholly irregular
and bad in Law.
Under this ground he contends
that the orc1er amending the
claim so as to cover an area of
land many ·times larger than
that covered by the original
claim was ultra vires,
and that all the subsequent
proceedings upon the hearing of
the amended claim are
consequently void. We agree with
this contention. Whilst it would
'be competent to, and indeed the
duty of, the Court to amend the
claim so that it should conform
with the real issues between the
parties, this amendment went
much further than that. Here the
real and only issue between the
parties was as to the ownership
of Kotafo lands. It was that
issue, and that only, in respect
of which the oath was sworn and
responded to in theAsantehene's
Court •• A." It was on that
issue only that the Asantehene's
Court" A " gave judgment, and on
that issue only that the
defendant appealed to the Chief
Commissioner's Court. To amend
the claim and hear the amended
claim as was done was to try a
new and different case which was
not before the Chief
Commissioner's Court either on
appeal or as a Court of first
instance. We are therefore of
opinion that the proceedings in
the Chief Commissioner's Court
subsequent to the amendment of
the claim were without
jurisdiction and void. As
regards Kotafo land itself we
think that the Acting Assistant
Chief Commissioner was right in
having a survey made and that it
was, and still remains, his duty
in his judgment, in whichever
party's favour it may be,
clearly to define the boundaries
of Kotafo land.
