Writ issued in the Native Tribunal of the State Council-case transferred by Provincial Commissioner to the Divisional Court­ State Council had no jurisdiction to entertain the claim on the writ-such jurisdiction only possessed by the Paramount Chief's Tribunal-claim accordingly within the jurisdiction of a Tribunal under Sec. 48 of the Native Administration Ordinance and therefore subject to the provisions of Sec. 65. Divisional Court possesses jurisdiction under Sec. 14 of the Courts Ordinance but cannot exercise it under Sec. 17 (ibid)-but Commissioner may transfer any cause commenced or brought before any Tribunal and Divisional Court can then exercise its statutatory jurisdiction. Appeal dismissed.

      Held: The Divisional Court possesses its jurisdiction under the Courts Ordinance and Rules made thereunder. The order of transfer only enables the Court in this particular case to exercise the jurisdiction and powers already given by Section 14.

       (2) The appeal is dismissed with a direction to the Court below that full force and effect must be given to the mandatory terms of Sch. III Order 26, even if it 'involves alteration in the capacity in which the Plaintiff sues or the Defendant is sued.

       Attention drawn to the distinction between the .. possession" and the exercise" by the Supreme Court of jurisdiction in land cases.

      MaIm v. Wulff (III W.A.C.A. 232) considered and overruled on the obiter dictum therein expressed.

        The facts appear from the judgments.

       C. F. H. Benjamin for Appellant.

       W. Ward Brew (with him K. A. Korsah) for Respondent.

       The following judgments, with which the other member of the Court was in agreement, were delivered :_

     GRAHAM PAUL, C.J., SIERRA LEONE.

      This case started in the Native Tribunal of the State Council of the Apimayim State, the writ of summons commanding the Defendant to attend" before this Tribunal, , The State Council' ". On the motion of the Defendant-Appellant the Provincial Commissioner's Court, by Order dated 3rd October, 1930, made under section 71 (1) (c) of the Native Administration Ordinance No. 18 of 1927 (now section 75 (1) (c)), transferred the case from the State Council to the Divisional Court. On the case coming before the Divisional Court Counsel for the Defendant-Appellant raised three points of law upon which the Divisional Court  Ruling on 7th June, 1939. Against that Ruling the De Appellant has appealed to this Court.

       Among his grounds of appeal the Defendant-A included :-

         5. Because the Writ of Summons, having been issued by Council in the first instance, was without jurisdiction and void ",

This ground was not raised by the Defendant-Appt the Divisional Court; but in this Court the Appellant's made it his first ground of appeal and it was fully argue. this Court.

It is quite clear that under the Native Administration Ordinance the State Council had no jurisdiction to entertain the  claim in the writ of summons. Respondent's Counsel! attempt to suggest that the State Council had jurisdiction  The only Court having original jurisdiction in the case 1 Paramount Chief's Tribunal which is quite different from the state  Council. (Section 48 of the Native Administration Ordinance.)    .

The question then is whether the Provincial Commissioner Court could effectually transfer from the- State Council Divisional Court a case pending in the State Council although  the State Council had no jurisdiction to entertain the claim in the case

 The " Divisional Court" referred to is a Divisional  Court of the Supreme Court which under section 14 of the Courts Ordinance shall, within the Gold Coast and subject as in this ordinance  mentioned, possess and exercise all the jurisdiction power and  authorities which are vested in or capable of being exercised by His Majesty's High Court of Justice in England". It is that the claim in this case is covered by that general jurisdiction  But by section 17 of the Courts Ordinance it is provided as follows

.• 17. Notwithstanding anything in this Ordinance contained  Supreme Court shall not exercise jurisdiction :-

•• (a) in the Gold Coast Colony in any civil cause or matter subject to the  provisions of section 65 of the Native Administration Ordinance save and except in accordance with the provision  to such  section, or in any cause or matter within the jurisdiction conferred  on a Provincial Commissioner's Court by sections 57 _ this Ordinance".

The relevant part of section 65 of the Native Administration  Ordinance is in the following terms :-

.. 65. Whenever it shall appear to the Court that any civil matter brought before it is one properly cognizable by a Tribunal under  sections 48, 49, or 50, or by a State Council or by a Provincial Council or  by two Provincial Councils sitting jointly. under the provision of this Ordinance, the Court shall stop the further progress of such civil matter before it, and refer the parties to a competent Tribunal  or state Council or to the Provincial Council or Councils, as the case may be

The claim in this case is within the jurisdiction of the tribunal under section 48 of the Native Administration ordinance  and  therefore it would appear to be " a civil cause or matter. subject to the provisions of section 65 of the Native Administration (Colony) Ordinance" and it does not come within any of the provisos to section 65. It therefore appears that the case is one over which the Divisional Court under section 14 of the Courts Ordinance " possesses" jurisdiction but cannot "exercise" its jurisdiction because of section 17 of the Courts Ordinance.

That being the position of the Divisional Court vis-a-vis this case one may now turn to the terms of the subsection under which the Provincial Commissioner's Court made the order for transfer in this case.

The subsection is in the following terms :-

" (1) The Provincial Commissioner's Court may, either of its own motion or on the application of either party to the cause or matter, by order stop the hearing of any civil or criminal cause, matter or question commenced or brought before any Tribunal whether as of first instance or by way of appeal, or, referred, transferred, or remitted thereto under section 76 of the Courts Ordinance, or under section 73 of this Ordinance, or otherwise, on such terms as it may consider just; and thereupon the following provisions shall apply;-

"(a) If such cause, matter, or question shall appear to the Provincial Commissioner's Court to be one within the jurisdiction of some other Tribunal, it may by the same or another order direct that such cause, matter, or question shall be enquired of, tried, and determined by such Tribunal as shall appear to it to have jurisdiction over such cause, matter, or question; or

"(b) Except in the case of any cause, matter, or question which relates to the ownership, possession, or occupation of any land, or which is otherwise one ,properly within the exclusive jurisdiction of a Divisional Court, the Provincial Commissioner's' Court may in like manner direct that 5JIch cause, matter, or question shall be enquired of and determined by a Magistrate's Court constituted either by the District Commissioner or by the District Magistrate (as may be specified) ; or

"(c) In the case of any cause, matter, or question which cannot under the provisions hereinabove in this section contained properly be enquired of, tried and determined by a Magistrate's Court, the Provincial Commissioner's Court may in like manner direct that such cause, matter, or question shall be enquired of, tried, and determined in the Divisional Court."

Section 76 is also important. It is as follows :-

" 76. Any cause, matter, or question, which the Provincial Commissioner's Court shall have transferred from a Tribunal under section 75 shall (unless the action is abandoned or discontinued) thereupon be enquired of, tried, and determined in accordance with the tenor of the order of the Provincial Commissioner's Court .

•• Provided that, if any order of the Provincial Commissioner's Court purporting to have been made under section 75 shall be found not to have been made in accordance with the provisions thereof, the Provincial Commissioner's Court shall, of its own motion or otherwise, amend such order so as to make it accord with such provisions".

It does appear from the terms of subsection (a) of section 75 that the Legislature did contemplate that a summons issued in a Tribunal having no jurisdiction to issue that particular summons might be transferred to a Tribunal having jurisdiction. Moreover a Tribunal may have" commenced or brought before" it a cause, matter or question in which it has no jurisdiction, and the power of the Commissioner's Court to transfer arises whenever any action is " commenced or brought before " a Tribunal.

The State Council is not a " Tribunal" as defined in the Native Administration (Colony) Ordinance but section 95 (3) appears bring the •. State Council" within the provisions of section 75.

Section 95 (3) is in the following terms:-

•• (3) In connection with the jurisdiction exercised by a State Council under this Ordinance. reference in this or in any other Ordinance to Tribunal or to Native Tribunals shall, except where the context otherwise requires, deemed to include a reference to State Councils".

It appears to follow that the Provincial Commissioner's Co had power to make an order of transfer of this case to the Division Court and that by section 76 of the Native Administration (Colon Ordinance the Divisional Court was bound to •. exercise" t jurisdiction it •. possessed ", and to enquire of, try, and determine the case •. in accordance with the tenor of the order of t Provincial Commissioner's Court".

That disposes of the fifth ground of appeal of the Defendant Appellant.

As regards the other grounds of appeal, the Appellant's Court abandoned No.3 for the reason that the learned Judge in the Court' below had already ruled, following what he conceived to be the effect of the decision in Malm v. Wulff (III. W.A.C.A.. 232), that  the amendment of the writ of summons made by another Judge under which the capacity in which the Defendant was sued was: changed from a personal to a representative capacity, could not  stand. That question will receive further comment later.

As to the other grounds of appeal, Nos. 1 and 2 deal with the terms of the claim as appearing in the writ of summons issued in the State Council. That claim is quaintly worded but from the. analysis of it there appear several propositions by way of statement of claim:-

1. The land known and called Nchimuwah has been attached to the stool from time immemorial and not to the Defendant's ancestors as he claims.

2. No Paramount Chief ever gave Defendant's ancestor the said land to look after and share the tribute.

3. The Defendant has voluntarily granted a document t the Plaintiff about rights to this land.

4. The Plaintiff has sworn oaths according to native custom that the land belongs not to the Defendant or hi ancestors but to the stool and the Defendant has fail to respond according to native law and custom to the. oaths but instead has begged the Plaintiff.

It is not quite clear on the statement of claim what precisely the claim of £50 damages is for. Is it for slander of title, or for trespass, or for menses profits? None of the criticisms which have been made of the writ of summons amount to a statement that there is no cause of action disclosed. In fact the Defendant Appellant's own affidavit of 23rd August, 1930 states that the " Plaintiff claims my family land called Bassofie which has been wrongly named by him as Nchimuwah ".

There is undoubtedly a cause of action disclosed but this is obviously a case for the application of the Rules under the Courts Ordinance by which the Divisional Court is bound in the exercise of its jurisdiction in any case--particularly Schedule III Order 26 which, inter alia, provides that all amendments which may be necessary or proper" for the purpose of determining in the existing suit the real question or questions in controversy between the parties, shall be so made ". It cannot be too definitely emphasised that the Divisional Court possesses or derives its only jurisdiction under, and must exercise that jurisdiction in strict conformity with, the Courts Ordinance and the Rules of Court made thereunder. The order of transfer does not give the Divisional Court its jurisdiction; it only enables the Divisional Court to exercise in this particular case the jurisdiction and powers already given to it by section 14 of the Courts Ordinance. The Divisional Court can and must deal with any transferred case in every respect as if it were a case originally brought before it by its own writ of summons.'

Whenever a case is transferred from a native court of any kind to the Divisional Court the first duty of the Judge is to see that the claim as stated correctly expresses what the Plaintiff is really claiming and, if not, to make whatever amendments may be necessary. This is clearly a case for this duty to be done before the Court below proceeds further with the case. It is absurd to suggest, as the Appellant does in his second ground of appeal, that the Court below had no jurisdiction to amend.

If the decision in Maim v. Wulff interfered with the exercise by the Court of its powers and the performance by the Court of its duty under Schedule III Order 26, it would, in my respectful opinion, have to be recol1'3idered. This .Court cannot, in my opinion, by a decision restrict the powers or the duties of a Court which are expressly laid down in a Rule of Court. But a perusal of the report of the case of Maim v. Wulff shows that the decision on this point was obiter dictum, all the members of the Court in that case having agreed in the first reason stated by the learned President for dismissing the appeal in that case which was in effect that the appeal was not properly before the Court.

This appeal in my opinion should be dismissed with a direction to the Court below that full force and effect must be given to the mandatory terms of Schedule III Order 26, even if it involves alteration in the capacity in which the Plaintiff sues or the Defendant is sued. Also it is desirable to express the opinion that this is a case where the Court below, having amended the writ of summons so as to cover the real question or questions in controversy between the parties. should order pleadings,

It only remains to refer shortly to the fourth ground of a When the Court below has ascertained the real question  in controversy between the parties and amended the writ of summons accordingly, and pleadings have been filed, it will then be for the Court to consider (if necessary taking evidence on the  point) whether under the native law applicable there is a ca action shown in regard to all or any of these questions against the  Defendant in the capacity in which, under the writ of summons as finally settled, he is sued. That disposes of the fourth ground  of appeal.

KINGDON, c.]. NIGERIA.

I have had the· advantage of reading the judgment which has  been delivered by my learned brother, the Chief Justice of Sierra Leone. In it he points out the distinction drawn by the Legislature ; between the "possession" and the " exercise" of jurisdiction of  the Supreme Court. It is a "nice" distinction and one which  does not appear to have occurred to anybody before, at any rate not to any of the Counsel who have appeared before this court either in this case or in that of Maim v. Wulff. But now attention is drawn to the point I feel bound to agree that  distinction is there and that effect must be given to it. I difficult to believe that the Legislature really intended such subtlety, but we have to interpret the statute law as we find it . The effect is to cause me to revise the opinion which I expressed  in the case of Maim v. Wulf in the second of the reasons given by me for thinking that the appeal in that case should be dismissed  Fortunately, as has been pointed out, what I said then was obiter dictum and made no difference to the decision of the appeal.

I am now satisfied that the view which I then expressed  that it was" a question of jurisdiction" was wrong, and that I was  in  error in saying" the Court only derives its jurisdiction to hear the  suit at all from the order of transfer made by the Provincial  Commissioner's Court "; and again, "The Divisional Court has by a special order, had special jurisdiction conferred upon it  and" again the words "which, under its ordinary powers, has no jurisdiction to try".

It is now made clear that the Supreme Court derive its jurisdiction from section 14 of the Courts Ordinance and not  from any order of transfer. The order of transfer merely withdraws the ban placed upon the exercise of the jurisdiction by section 17 of the Ordinance. This being so it becomes a matter not of  jurisdiction but of procedure, and I agree that the Court has both the power and the duty to apply to the full its ordinary rules procedure. I, therefore, concur upon this point with the judgement delivered by my learned brother, the Chief Justice of Sierra Leone, and I also concur therewith upon all other points.