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ANDOWAH AND OTHERS v. AMAKYIWA AND OTHERS


  • New
  • 1962-10-03
  • HIGH COURT
  • 2 GLR 91-93
  • Print

SOWAH, J.


Summary

Practice?-Local courts?-Writ applied for by a stranger to the action?-Whether writ of summons valid.Local courts?-Jurisdiction in land cases?-Plaintiff tenders documents in proof of title?-Whether suit exclusively governed by customary law?-Courts Act, 1960, (C.A. 9), s. 98(1) (a).

Headnotes

A writ filed in the local court for recovery of possession of land was signed for the plaintiffs by a Mr. Baiden-Amissah, a layman, and a complete stranger to the action. The plaintiffs sought possession of land occupied by the defendants as licensees under customary law. The plaintiffs alleged that the land was bought by their father from the stool of Winneba, and that he later, during his lifetime, made a gift of it to them. They tendered two documents in support of these allegations. They won their case. The defendants appealed on two grounds viz: (i) that the writ of summons was a nullity because it purported to be issued by a Baiden-Amissah who was not a party to the suit; and (ii) the documents tendered in support of the plaintiffs' title were in English form, and they were bound to be interpreted and construed in accordance with the canons of construction known of English law. The suit is not therefore one "where the law applicable is exclusively customary law?" (s. 98 (1) (a) of Courts Act, 1960, (C.A. 9)), and the local court had no jurisdiction.

Judgement

APPEAL from a judgment of a local court in an action for recovery of land.

In this appeal counsel for the appellants elected to argue only ground 1 (a) of the additional grounds of appeal, that is: ?"The local court had no jurisdiction to hear the case and consequently the trial was null and void.?" Counsel submitted firstly that the writ of summons [p.92] was issued by a person not a party to the action and referred the court to pages 3 and 4 of the record of appeal, where it appears that the application for the writ was made by one Baiden-Amissah who signed for the plaintiffs. Counsel contended that Baiden-Amissah not being a party to the suit was incompetent to issue out a writ of summons and therefore the whole trial was a nullity, the local court having no jurisdiction.

In support of counsel's arguments counsel cited the case of Seawornu v. Gakor1 in which it was held, inter alia, that service of the writ of summons on a person not authorise by the court to be a legal representative was wrongful. Counsel further cited the case of Chief Yaw Damoah v. Chief Kofi Taibil2 where during the course of the trial the panel constituting the court was altered. This was held to be such an irregularity as to vitiate the whole of the proceedings and to render it null and void. In my view the cases cited afford no support to the argument of counsel.

As counsel for the respondents rightly pointed out, the writ of summons was issued by the local court magistrate: vide page 2 of the record. Albeit, the application was made for the plaintiffs by a person not a party to the suit. He signed for the plaintiffs. There may be some irregularity in the manner the application was made for the plaintiffs, as it may well be said that the party signing appeared to be acting as a solicitor or an attorney. Such practices, I consider, should be deprecated, but this is not an irregularity which vitiates the proceedings to the extent of rendering them a nullity.

In this case the writ was issued against the defendants, they appeared in court and entered their plea. The plaintiffs were themselves in court. It is pertinent to refer to the case of Kwaku Nyako v. A. E. Akwa3 where the parties appeared before a Grade "A" court without a writ of summons being taken out in that court. In that case Verity, C.J., stated as follows4:

"In the present case I am not aware of the means whereby the attendance of the appellants was secured: the fact remains that they were before the Grade 'A' court, which had jurisdiction to hear and determine the complaint; that they were given the opportunity of knowing the nature and particulars of the complaint; that they pleaded thereto and were fully heard, and in my view on the authority of the case to which I have referred the absence of the issue of a summons as prescribed by rules of procedure could not take away the jurisdiction of the court before which they appeared and answered to the complaint."

The case of Kwaku Nyako v. A. E. Akwa is a much stronger case than the present one. I do not consider that because the application for a writ of summons was made by someone other than the plaintiffs and on behalf of the plaintiffs the proceedings before the trial court were null and void.

The gravamen of counsel's attack, however, was based on section 98 (1) and 1 (a) of the Courts Act, 19605 which states: "(1) The civil jurisdiction of a Local Court shall be as follows: (a) suits relating to the ownership, possession or occupation of land, where the law applicable is exclusively customary law." Counsel submitted that the respondents [p.93] relied solely on two documents as the basis of their claim, and that those documents being drawn up in English form of conveyance could only be construed in accordance with or by the application of the principles of English rules of construction. The local court has, therefore, no jurisdiction to hear the suit as it would be applying law other than customary law. Counsel cited the case of Timitimi v. Chief Amabebe.6

If I may say so, with respect, the principles enunciated in the case cited are correct. An inferior court can only operate within the circumference of the Act creating it and, unlike a superior court, has no jurisdiction except that specifically conferred on it by its creator. With respect to counsel, I do not see the relevancy of this case to his argument. In my view this is not the position here. The plaintiffs took action for the recovery of land which the defendants occupy as licensees under native customary law. They alleged that their father was the owner of the land, having bought it from the stool of Winneba. Before the death of their father, the land was given to them as a gift, as shown in exhibit C. These documents were tendered to show the devolution of title to the land upon the plaintiffs and to support their claim that they stepped into the shoes of their late father. The fact that a conveyance has been executed in favour of the plaintiffs will in no way affect the relationship of the defendants vis--vis the plaintiffs, who were at all times licensees according to custom; that is to say they occupy the land subject to good behaviour and at all time, acknowledging the plaintiffs as the owners thereof.

In any case even if the documents had been conveyances in English form, which in the case of exhibit C is far from being so, the local court was still entitled to adjudicate upon the matter. The mere fact that a conveyance is produced in my view does not oust the jurisdiction of the local court. A case in point is Azzu v. Cooper7 in which it was held as follows:

"The case for the defence is (1) that the Konor's tribunal had no jurisdiction to try the case, documents being involved. This question was decided by the last Full Court against the defendant's contention, and we are of the same opinion, namely, that the mere existence of documents in a case does not of itself do away with the jurisdiction of the native tribunal."

I am of the opinion that the local court had jurisdiction to hear the case and I accordingly dismiss the appeal with costs assessed at G24 including G15 15s. counsel's costs.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

R. J. Hayfron-Benjarnin for the plaintiffs-respondents.

Defendant / Respondent

I. K. Abbon for the defendants-appellants.

Referals

(1) Chief Yaw Damoah v. Chief Kofi Taibil (1947) 12 W.A.C.A. 167

(2) Kwaku Nyako v. A. E. Akwa (1949) 12 W.A.C.A. 465

(3) Seawornu v. Gakor (1957) 3 W.A.L.R. 21

(4) Timitimi v. Chief Amabebe (1953) 14 W.A.C.A. 374

(5) Azzu v. Cooper (1912)2 Ren. 679

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