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HOME           3  WEST AFRICA COURT OF APPEAL

 

                       

                                Accra, 21st April, 1937.

                                Cor. KINGDON, PETRIDES and WEBBER, C.JJ.

                                                                SOLOMON JONAH                                  Plaintiff- Respondent.

                                                                               v

                                                                      KOJO OWU                                        Defendant -  Appellant.

 

 Appeal Court. 21 April. 1937.

. Appeal from Judgment of the Court of a Provincial Com­missioner exercising Appellate Jurisdiction.

Claim for " the sum of £25 damages from the defendant to show cause why if the plaintiff promised to show him boundary of land of forest on his own wish and has not got the chance to do so, the defendant seized the plaintiff from entering into the said land of forest in which farms are made for foodstuffs."

Held: That the Provincial Commissioner's Court was wrong in treating the dispute between the parties as one relating to the ownership, possession or occupation of land. whereas the native appellate Tribunal had not so treated it. Consequently the Provincial Commissioner was without jurisdiction. Appeal allowed, and judgment of native appellate Tribunal restored. Form of writs in native Tribunals considered.

The facts of the case are sufficiently set out in the judgment.

 C. F. H. Benjamin for Appellant.

K. A. Korshah for Respondent.

The following joint judgment was delivered :-

KINGDON, C.J., NIGERIA, PETRIDES, c.J., GOLD COAST, AND WEBBER, c.].. SIERRA LEONE.

Plaintiff-respondent sued the defendant-appellant before the Tribunal of the Divisional Chief of the Nifa Division of Gomoa Assin. The writ of summons read :-

•• Plaintiff claims the sum of £25 damages from the defendant to show cause why if the plaintiff promised to show him boundary of land of forest on his own wish and has not got the chance to do so, the defendant seized the plaintiff from entering into the said land of forest in which farms are made for foodstuffs."

The judgment of that Tribunal was in the following terms :-

•• I. the undersigned, Nana Epoe Ababio, the Nifahene of Gomoa-Assin State Ohua Division, and my Councillors have carefully investigated the above case, and owing to the corroboration of the plaintiff's witnesses' evidences. the judgment has been given in favour of the plaintiff and defendant to pacify plaintiff £8 with costs."

On appeal the Tribunal of the Paramount Chief of Gomoa Assin, sitting as an Appellate Tribunal, reversed this judgment on two grounds and gave judgment in favour of the defendant-appellant with pacification of £5 and costs.

From this judgment it will be seen that the Tribunal came to the conclusion that the litigation was primarily due to the plaintiff going and fixing new boundary marks of obar-tree with oae Sesa between their lands in the forest land " Akyeman " without the knowledge and consent of the defendant, who also had an interest in fixing the new boundary marks. hi consequence of this the defendant brought a complaint against the plaintiff before one Essell, whereupon the plaintiff, to quote from the judgment, "withdrew the case and took him (defendant) to his house to pacify him with one bottle of rum to give up the matter. And in this wise the defendant­appellant had the audacity of verbally, but in polite manner, telling the plaintiff-respondent herein not to enter on the said forest land by himself alone and have anything contrary done until the Tuesday that the plaintiff-respondent had fixed to gv and show the defendant­appellant the boundary. The plaintiff-respondent therefore summoned the defendant-appellant before Gomoa Ogua Tribunal to assign his reason of such an obstruction .... "

The native Appellate Tribunal's reason for allowing the appeal were :-

•• (a) that since the plaintiff had admitted to them that he had already •• soundly" removed all his foodstuffs from the said farms the writ of summons was" misunderstoodable " as it was not clear whether he was claiming for the return of the foodstuffs or for their value, and

•• (b) that it was not contrary to custom for the defendant to forbid plaintiff to go to the land in dispute until they could go to the land together and agree as to the boundaries."

On appeal to the Provincial Commissioner's Court, Central Province, the judgment of the native Tribunal Court was set aside With costs.

In the course of his judgment the Provincial Commissioner, after quoting the dictum of Crampton Smyly, C.J., in his judgment in the case of Ohene Kwesi Abuagyi II v. Ohene Amua Gyedu that "Personally I do not lay any stress on the form in which any action is brought before the native Tribunal as long as the issue involved is clear," went on to state" In this case the issue is clear. Both parties claim to be the owners of the same piece of land. The Appellate Tribunal viewed the land in question as did this Court, and the inspection made it very clear what the claim was."

In Kwamin Fosu v. J. G. Turkson* this Court considered the dictum of Smyly, C.J., just referred to. In the cO.use of his judg­ment, with which the other two Judges concurred, Sir Donald Kingdon said :-

•• Smyly, C.J., said in the case of Ohene Kwesi Abuagyi II v. Ohme Anzua Gyebu (F.C. Judgments 1920-21): 'Personally I do not lay any stress on the form in which an action is brought before the native Tribunal so long as the issue involved is clear: I wish to emphasise the words' so long as the issue involved is clear,' and I would couple' relief claimed' with' issue involved:

I have seen many claims in a native Tribunal and in a large percentage it would puzzle the ordinary person to say what exactly is the issue involved or the relief claimed. In many cases it doesn't matter very much because all the parties and the Tribunal seem to think the same and the case is heard and determined on that basis. But every now and again there comes a case, like the present, where widely different views as to the meaning of the claim arc taken and endless litigation results. Clarity in the nature of a claim before a native Tribunal is particularly important because it is necessary not only to enable a proper decision in the case to be given but also to determine what Tribunal had jurisdiction to hear the case and in which direction an appeal lies:'

• Note: reported anle, p. 127.

The first native Tribunal have not specifically stated what in their view was the cause of action, but there is no reason to conclude from its terms that they ever considered that the claim was for title to land. When the case went before the native Appellate Tribunal they had to consider the various grounds of appeal. The first of these was:-

•• 1. That no cause of action was described in the writ of summons."

The plaintiff, when asked whether he could make any defence upon 1-6 of the defendant's grounds, replied:

•. Yes, in respect to clause I I beg to submit that the claim can be found at the top of the record of appeal from the Tribunal of Ogua, whether it is with cause or not this Superior Tribunal can find out."

When the defendant was asked if he desired the native Appellate Tribunal to view the land, he replied:

•. Plaintiff respondent did not summon me about land, nevertheless if he has any desire that this Superior Tribunal will go and view the land I have nothing to allege."

Having regard to the terms of the writ and these answers, there was in our opinion ample justification for the native Appellate Tribunal coming to the conclusion, as obviously it did, that the real dispute between the parties was not one relating to the ownership, possession or occupation of land, but whether the plaintiff was entitled to sue the defendant because the latter forbade him to go on the land in dispute until they go together and agree as to the boundaries.

When the case came before the Provincial Commissioner's Court both parties disputed as to the ownership of the land, and the Provincial Commissioner, perhaps not unnaturally, carne to the con­clusion that the appeal concerned the title to land and that he had   jurisdiction to hear the appeal. .

         In our opinion the true test was not what the parties said the action was about when they reached the Provincial Commissioner's Court but what the action was really about before the first Tribunal.

In our opinion there was nothing on the record when the case reached the Provincial Commissioner's Court to show that the real dispute between the parties was one relating to the ownership, possession or occupation of land. On the contrary we are of the opinion that the native Appellate Tribunal was right as to what was the real dispute between the parties. That being so we are satisfied that the Provincial Commissioner had no jurisdiction to hear the appeal from the native Appellate Tribunal. We are further of the opinion that even if the Provincial Commissioner had juris­diction to hear the appeal he should not have disturbed the judgment of the native Appellate Tribunal, except in regard to the amount of £5 satisfaction.

We accordingly allow the appeal with costs, which we assess at £44 14s., and restore the judgment of the native Appellate Tri­bunal.

We place upon record that Counsel for the appellant agrees that he cannot support the order for payment to his client of £5 as pacification and will not seek to enforce it.


 

 
 

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