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.