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  • appeal
  • 1961-05-23
  • 1 GLR 257-258
  • Print



Practice and procedure?-Mandamus?-Transfer of suit pending in native court to High Court?-Judgment already delivered by different native court?-Whether transfer ineffective.


In 1953, the respondent instituted an action against the appellant in the Adaklu Native Court "B" (No. 60/1953) for declaration of title to certain land. About the same time the appellant instituted an action against the respondent for declaration of title to the same land in the Tongu Local Council Court "B" (No.83/1953). On the 5th October, 1953, the Adaklu Native Court "B" gave judgment for the respondent in default of appearance by the appellant. On the 31st October, 1953, the appellant applied unsuccessfully to the Ho Magistrate's Court for the pendency of the case to be reported to the Land Court. He subsequently applied unsuccessfully to the Adaklu Native Court "B" to set aside its judgment of the 5th October, 1953, but did not appeal against its refusal. Meanwhile on the application of the respondent, the Sogakope Magistrate's Court had stopped the hearing instituted by the appellant before the Tongu Local Council "B". The appellant then successfully applied for a writ of mandamus which was issued by Windsor Aubrey, J. with the result that the suit No. 60/1953 in the Adaklu Native Court was reported to the Land Court as a suit pending and accordingly transferred to that court. Counsel for the appellant submitted that since there was a conflict of jurisdiction, the Adaklu Native Court "B" had no jurisdiction to try the case and the proceedings before it were therefore null and void. Consequently there was still a suit pending which could be transferred.


APPEAL from a judgment of Simpson, J. in the High Court, Ho, delivered on the 28th April, 1960 (unreported) in an action for declaration of title to land which had been transferred to that court from the Adaklu Native Court "B". The facts which are taken from the judgment of [p.258] Simpson, J. are set out in headnote.


The facts in this case as stated in the judgment from which the appeal has been lodged are not in dispute; upon those facts the learned judge rightly, in our view, reached this conclusion: "The Divisional Court, Accra was clearly misled by the affidavit accompanying the motion for mandamus in which the applicant swore that the suit was pending for hearing and determination in the Adaklu Court".

Counsel for the appellant, agrees that in fact when the application for mandamus was made, the Adaklu Native Court "B" had already given judgment in favour of plaintiff, but counsel was under the impression that since, in his view, the Adaklu Native Court "B" had no jurisdiction to hear the case, the judgment alone was null and void but the suit was then, and is still, pending in that court.

This contention is erroneous, because as soon as the native court delivered judgment it became functus officio in respect of the suit and therefore no suit or writ of summons remained in the court which could be transferred. Consequently when the magistrate, purporting to act under the writ of mandamus, reported the pendency of the suit to the Land Court, he was clearly in error.

In the result we agree with the judgment of the Land Court and accordingly dismiss the appeal.


<P>Appeal dismissed.</P>

Plaintiff / Appellant

G. S. Lassey

Defendant / Respondent

B. J. da Rocha


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