This is an appeal
ex parte
against the judgment of the
Supreme Court of the Gold Coast,
affirming a judgment of the
Chief Justice of the same
Colony. which dismissed an
action brought by the appellant
against the respondent on the
ground that there was no cause
of action disclosed. 'the
appellant is a native of the
Colony and the respondent is
President of the Native Tribunal
of Akyem Abuakwa. 'l-'he
proceedings in the Native
Tribunal are regulated by an
ordinance entitled "'the Native
Administration Ordinance."
'The respondent issued a summons
against the appellant alleging
that he had contravened Article
28 of the Ordinance by
attempting to undermine the
authority of the paramount
chief. Nothing so far as appears
has actually yet been done under
that summons, but the appellant
instead of appearing before the
Tribunal and pleading that he
had not contravened section 28,
raised the present action in the
Divisional Court, in which he
craves a declaration that the
issue of the summons was
ultra vires
and oppressive and asks for an
injunction against the
respondent from proceeding
further with the case in the
Native Court. After service of
the summons the appellant
applied for an interim
injunction, and he put in an
affidavit in which he merely
repeated
ad longum
the charges made by the original
writ. Before the hearing the
appellant tendered another
affidavit which again repeated
in substance what he had said
before, but added a fresh
allegation that the respondent
before the taking of the process
in the native Court had
threatened to and meant to
invade the appellant's lands.
'The Chief .justice refused to
Note.-Full Court Judgment
reported in Gold Coast, Fun
Court Reports, 1926 29 at p.
381.receIve this second
affidavit and gave judgment
against the appellant, holding
that no cause of action was
disclosed. His judgment was very
much wrapped up in allusions to
procedure and did not proceed on
the simple ground which was open
to him.
On appeal the appellant made no
motion to amend his writ of
summons. The learned Judges of
the Court of Appeal dismissed
the appeal, and Hall,
J.
explicitly said that he was
content to assume that the
second affidavit was before the
Court.
On the hearing before this Board
the appellant's counsel
complained that he had never had
the opportunity of really
stating the case on which his
writ of summons was based. As
their Lordships were very
unwilling that the case should
be decided merely on a point of
pleading they allowed him to put
in a statement of claim. The
statement put in merely
reiterated what had been said,
but it added one allegation in a
clearer form than had been
stated in the second affidavit.
It was as follows:-
" 'l'he defendant before the
commencement of this action
threatened, both directly to the
plaintiff and to other members
of the said stool of
Assamangkese and threatens
forcibly to enter and trespass
on the plaintiff's lands as
aforesaid and to occupy and
possess them in violation of his
ownership and occupation
thereof, and this without any
lawful warrant or authority."
He also claimed damages.
'Their Lordships think that the
judgement of the Court below was
right upon very simple grounds
",h:1'11, indeed, are the
foundation of the judgment of
the Court of Appeal. There is no
question but that the complaint
as to the violation of section
28 of the Native Ordinance is a
relevant complaint, properly
brought before the Native Court.
The appellant can put in a
defence and if judgment is
against him he can appeal and he
can also apply for transfer.
That being so it is quite out of
the question, viewing it as a
civil proceeding, to stop the
case by raising a case in
another Court and craving by
means of a declaration to make
good what is really the defence
in the original action simply by
saying that the bringing of the
case is malicious_
As to
ultra vires
there is a serious misuse of the
term. What could be
ultra 'pires
was not the action of the
respondent, but the clause of
the ordinance, and that point,
if to be taken, must be taken in
the Native Court. On the other
hand, viewing the matter as one
of malicious prosecution, no
action in a Court to claim
damages could lie until there
has been an acquittal in the
first Court,
The allegation in article 5,
however, raises a separate
question. The action there
alleged is an action independent
of the other process, and lays
no foundation for stopping that
process. It might have been a
good case if made out for an
injunction against trespass and
for damage's, but the writ of
summons cannot be held to
include it, and no motion was
made to amend the writ of
summons.
Their Lordships do not see that
the motion if made would
necessarily have been granted,
for it would have been really
grafting a good new action on
one that was intrinsically bad;
but at any rate the motion was
not made in the Court below, and
cannot be entertained by then
Lordships now.
Their Lordships will therefore
humbly advise His Majesty to
dismiss the appeal.
