KINGDON, C.J.,
NIGERIA, PETRIDES, C.J., GOLD
COAST AND WEBB, C.J., SIERRA
LEONE.
In this case the
defendant-appellant made an
application dated the 10th
November, 1930 to the Court of
the Provincial Commissioner of
the Central Province in the
following form:-
" Please grant of Writ of
Possession for the land Agissu,
" the subject of the Privy
Council Judgment of 1928, being
"bounded on the north by River
Kina, on the south by " Charles
Acquah's land, on the east by
Aban's land and " River Oki, and
on the west by Ocra and Kobina
Brati'B land, " in Ayan Denkera
State, Saltpond District.
" Judgment of His Majesty's
Judicial Committee of the "
Privy Council delivered on the
15th day of November, 1929, "
registered in the Supreme Court
of the Gold Coast Colony " by
Order of His Honour Sir G. C.
Deane, KT. sitting as a "
!jingle Judge of Appeal made on
the 11th day of September, "
1930."
In pursuance of the application
that Court issued the following
writ:-
" To the Deputy Sheriff,
" Whereas lately, by the
Judgment of the Privy Council, "
London, dated 15th November,
1929, was ordered to deliver "
to Abraham Essell of Ekuambassie
possession of all that
" piece or parcel of land Agissu
being bounded OIl the north " by
River Kina, on the south by
Charles Acquab,\,B land, on "
the east by Aban's land and
River Oki and on the west by "Ocra
and Kobina Baah's land in Anyan
Denkera State " Saltpond
District; Land situate at
Ekuambassie.
" Judgment of
Privy Council registered in
Supreme "Court, Gold Coast (W.A.C.A.)
dated 11th " September, 1930.
" These are
therefore to command you, in His
Majesty's " name, to cause the
said Abraham Essell of
Ekuambassie to "have possession
of the said land and premises
with the " appurtenances; and in
what manner you have executed "
this writ, make appear to the
Court.
" Dated at
Cape Coast this 11th day of
December, 1930."
Thereupon the
plaintiff-respondent's
predecessor, Rebecca Davis,
moved that same Court for an
order to amend the writ. That
motion was heard on the 3rd
February, 1931 and dismissed on
the grounds that" the Writ of
possession in question has not
"been exhibited in the affidavit
in support of the motion and "
none of the documents referred
to in the argument of Counsel "
for the mover is before the
Court either for consideration."
The
plaintiff-respondent's Counsel
then filed a further motion in
the same Court for an order
"recalling and " amending in
terms of the Privy Council
Judgment the writ of "possession
issued herein from this
Honourable Court at the "
instance of the above-named
appellant, and for stay of
execution " until the hearing
and determination of this
motion." But as Rebecca Davis
died on the 3rd March, 1931,
that motion could not be
proceeded with until a
substitution was made.
On the 16th
March, 1931, the motion was
adjourned sine die. I t
is still pending.
No further
steps were taken by the
plaintiff-respondent either on
that motion or otherwise until
he caused to issue from the
Divisional Court of the Central
Province the writ in this suit
dated the 22nd October, 1936,
which is in the following form:-
" To Abraham
Essell of Ekuambasie.
" You are
hereby commanded in His
Majesty'!! name to " attend
before this Court at Cape Coast
on Tuesday the 24th " day of
November, 1936, at 8.30 o'clock
in the forenoon, "then and there
to answer a suit of plaintiff of
Anamabo " against you. The
plaintiff claims that the writ
of possession " issued by the
Court of the Honourable
Commissioner of the " Central
Province and dated the 11th day
of December, 1930, "at the
instance of Abraham Essell in
the case entitled
"Rebecca
Davis per J. E.
Sampson-plaintiff-respondent
appellant-respondent versus
Abraham Essell defendant
appellant-respondent-appellant
be declared null and void " and
set aside on the ground that the
said writ of possession " was
obtained by fraud and the said
Court of the Honourable "
Commissioner of the Central
Province acted without juris"
diction in issuing the said writ
of possession."
The action
was tried hy Pearson, Acting J.
who gave the following
judgment:-
"This writ of
possession was issued by the
learned " Deputy Commissioner of
the Central Province without any
" judgment or order for
possession or recovery having
been " given by any Court. The
writ was therefore issued
ultra vires or without
jurisdiction and is null and
void and must " be set aside.
J. A. C. Mansu v. Kwarnin
Etsiaku, West " African
Court of Appeal 13th May, 1936.
Court below to " carry out.
"Judgment for
plaintiff accordingly with costs
to be " taxed."
Against this
judgment the defendant now
appeals to this Court, and his
first ground of appeal is:-
"1. That the
Court had no jurisdiction to
entertain the " suit to set
aside writ granted by a Court in
a suit " of which the said Court
so granting the writ was "
properly seised."
As this
ground questions the
jurisdiction of the Divisional
Court to entertain the suit we
have heard full argument upon it
before considering the other
grounds of appeal.
Now it is
well established law that where
a judgment has been obtained by
fraud it can be set aside in a
subsequent action brought for
that purpose. (Cole v.
Langford (1898) Q.B. 36).
But such action would ordinarily
be brought in this country in
the same Court which gave the
judgment sought to be impeached.
It would only be where that
Court had for some reason no
jurisdiction to entertain such
a suit that it might be possible
to bring the suit in another
Court so as to provide the
aggrieved party with a remedy
where otherwise he would have
none. It is true that in the
present case the Court of the
Provincial Commissioner having
no original jurisdiction could
not entertain a fresh suit
similar to the one brought in
the Divisional Court. But
inasmuch as it is not a judgment
which it sought to get set aside
but merely a writ of possession
issued upon application by the
defendant-appellant, the
plaintiff ·respondent had
another and indeed a more
obvious remedy than bringing a
fresh action in a different
Court, namely to move the Court
which issued the writ to recall
it. This, as has been shown, he
has already done and the motion
is still pending. Moreover, if
he were to pursue that remedy
and meet with a refusal in the
Provincial Commissioner's Court
he could appeal to this Court
against that refusal in
accordance with the provisions
of section 86 of the Native
Administration (Colony)
Ordinance (Cap. 76) for a
refusal to recall a writ of
possession would clearly be a
matter relating to possession of
lands.
This being
so, and the Divisional Court not
being a Court of Appeal from the
Court of a Provincial
Commissioner in matters relating
to possession of lands, we are
of opinion that the Divisional
Court had no jurisdiction to
entertain the suit to set aside
the writ.
Our attention
has been drawn to the unreported
case of Essie Nkumah v. J. T.
Arthur in which in a case
somewhat similar to the present
Barton, J. sitting in the
Divisional Court ruled on the
4th' July, 1936 " I have power
to hear the present suit this "
being the only Court of
competent jurisdiction to hear
it " and on the 8th September,
1936, gave judgment setting
aside the writ of possession. We
are not sitting on appeal in
that case and it is not
necessary to consider whether
that case was rightly decided;
we will only point out that the
learned Judge seems to have
overlooked the fact that the
plaintiff in it had another
remedy by motion in the
Provincial Commissioner's Court.
For the
reasons given the appeal in the
present case is allowed, the
judgment of the lower Court,
including the order as to costs,
is set aside, and it is ordered
that the claim of the plaintiff.
respondent do stand dismissed.
The appellant is awarded costs
in this Court assessed at £22
7s. 2d. and in the Court below
to be taxed .
