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COOK v. KUTSOATSI AND OTHERS


  • New
  • 1960-04-14
  • HIGH COURT
  • GLR 96-101
  • Print

ADUMUA-BOSSMAN, J.


Summary

Practice?-Jurisdiction of Native Court?-Civil cause?-Interpretation of section 14 (3) of Native courts (Southern Ghana) Ordinance, Cap. 98?-Equitable mortgage and customary pledge distinguished.

Headnotes

The plaintiff who was resident in Saltpond sent his son to the first defendant in Keta for a loan of G100. A receipt (Exhibit "A") dated 16th July, 1955, was given for the money, the security being the plaintiff's house and coconut plantation in Saltpond with a right of sale on failure to repay the loan within six months. The first defendant subsequently sued the plaintiff for recovery of the loan in the Keta Native Court and on 27th November, 1956, obtained ex parte judgment. In execution of that judgment, the house at Saltpond was attached under a writ of fieri facias issued by the Keta Native Court and sold by public auction to the second defendant.The plaintiff thereupon brought this action claiming G1,500 damages for the wrongful sale of his house. He contended that the native court at Keta had no jurisdiction to hear the action for the debt and therefore the judgment of that court and all subsequent proceedings were a nullity. He relied on the Native Courts (Southern Ghana) Ordinance, Cap. 98, s. 14 (3) which provides that: "All civil causes . . . shall be tried and determined by a Native Court having jurisdiction over the area in which the defendant was at the time the cause of action arose." He contended further that the document (Exhibit `A') constituted an equitable mortgage and was, therefore, a matter over which the native court, in any event, had no jurisdiction.

Judgement

ACTION for damages for alleged wrongful sale of a house.

(His lordship referred to the facts and continued):

It is the sale in the foregoing circumstances which plaintiff's counsel contends was illegal, because he maintains, the Keta Court had no jurisdiction in respect of the action for debt, and its judgment and all subsequent proceedings were accordingly a nullity. His argument based on section 14 (3) of Cap. 98, is that the defendant was resident, or at any rate was in Saltpond, but not in Keta, when the debt became payable at the time stipulated in the document, and therefore it is the native court having jurisdiction over the Saltpond area which was the court legally and properly entitled, or vested with jurisdiction, to try the case.

It is perhaps unfortunate that such a highly technical expression or phrase as "the cause of action arose" has not been defined or explained in the Native Court Ordinance, Cap. 98, in a layman's language or in terms simple enough for the understanding of the type of persons, the large mass of simple illiterate persons, whom the native courts mostly serve. It falls therefore to try and ascertain or find out the meaning of the expression or phrase by reference to the law dictionaries. Stroud's Judicial Dictionary (3rd Ed. Vol. 1 p. 424) defines "cause of action" as "the entire set of facts [p.98] that gives rise to an enforceable claim"; and Wharton's Law Lexicon (14th Ed. p. 168) defines the phrase as:?-"A right to sue. All the facts which are necessary to establish the plaintiff's right to the remedy which he claims."

Even in the light of those definitions, it appears extremely doubtful whether the contention of learned counsel for the plaintiff can be well-founded, when he argues in effect that the falling due of the debt at the date stipulated for payment and default in payment, constitutes the "arising of the cause of action."

The next important enquiry is, in what circumstances is "a cause of action" said to arise. To ascertain the right answer or explanation, it appears necessary to refer to some of the English cases which have explained or interpreted the same expression used in some English statutes conferring limited jurisdiction (as does the Native Courts Ordinance, Cap. 98) on local courts.

In the case of Cooke v. Gill ((1873) L.R. 8 C.P. at p. 113) Bovil, C.J. said:

"The Lord Mayor's Court is clearly a court of inferior jurisdiction, and is subject to the general rules applicable to courts of that description, except in so far as it is exempted therefrom by usage or by statute. In Chitty on Pleadings, 7th ed. p. 287, the rule is thus laid down:?-

'In inferior courts, it continues necessary, in addition to the statement of a country as a venue, to aver that every material fact took place, "within the jurisdiction of the court" as, in assumpsit, as well that the promise or contract was made as that the goods were sold or the money had and received, etc. within the jurisdiction of the court; and if the allegation be omitted, the declaration will be insufficient even after verdict . . .'

And, although a general form of affidavit and declaration were formerly allowed, yet, when it came to the evidence, it was always necessary to prove that the gist and substance of the cause of action occurred within the jurisdiction. Here, all the material facts which constitute the cause of action occurred beyond the jurisdiction of the Mayor's Court. Independently, therefore, of the recent Act, that court had no jurisdiction over this contract or the parties thereto."

In the same case, Keating, J. said (at p. 115):

"Before the passing of the Act, it is clear, and for that no authority need be cited,?-that, whatever the course of pleading was, every material fact constituting the cause of action must have been proved to have occurred within the jurisdiction of the Mayor's Court, as in the case of every other court of inferior jurisdiction."

and Brett, J. (at p.116):?-

"Beyond question the Mayor's Court is a court of inferior jurisdiction...That being so, independently of the Act, every material fact must have arisen within the jurisdiction to entitle the Mayor's Court to entertain the suit. `Cause of action' has been held from the [p.99] earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed."

Accordingly, on the facts of that case, which were set out in the headnote as follows:?-

"The defendants (who had no residence or place of business in London) drew bills in Philadelphia upon the Union Bank of London and endorsed them in Philadelphia, and there delivered them to the agents of the plaintiffs, who remitted them to the plaintiffs in London. The drawees refusing to accept the bills, the plaintiffs issued an attachment out of the Lord Mayor's Court to attach moneys of the drawers in the hands of garnishees, bankers in London"

it was held that the "cause of action arose" in America and not in London, and order nisi for prohibition against the Mayor's Court was made absolute. The Act to which each of the learned judges made reference was The Mayor's Court Procedure Act, 1857 (20 21 Vict. c.clvii). See also the cases of `Borthwick v. Walton (24 L.J.C.P. (N.S.) 83); Newcomb and Another v. De Roos ((1859) 2 E. E.271); Aris v. Orchard (6 H. N.160); Barnes v. Marshall ((1852) 21 L.J.Q.B.(N.S.) 388); Adjoa v. Nelson (Div. Ct. 1931-37, 98); Payne v. Hogg ([1900] 2 Q.B. 43). In the light of those authorities on the English Act in pari materia with our local Ordinance, the Native Courts Ordinance, Cap. 98 in so far at least as the expression or phrase "cause of action arose" is concerned, there can be no doubt whatsoever that the contention of learned counsel for the plaintiff in this case that the cause of action arose in Saltpond is completely misconceived and erroneous. The contract was made in Keta, the loan received there, and the receipt or note signed and delivered to the first defendant there. In the words therefore of Bovil, C.J. in Cooke v. Gill ((1873) L.R. 8 C.P.107), "the gist and substance of the cause of action occurred within the jurisdiction", that is, within the Keta jurisdiction. It was a similar view which Aiken, J. took in the local case of Adjoa v. Nelson (Div. Ct 1931-37, 98), when, in respect of a contract made in Koforidua in the New Juaben district with a transport owner driver and carrier, for the carriage of the plaintiff and her luggage to a destination outside the New Juaben district, in the course of performance of which contract the plaintiff's luggage was found lost when the parties arrived in a town in the Akwapim district, he held that the Tribunal of the Paramount Chief of Akwapim within whose jurisdiction the contract was broken by the loss of the plaintiff's luggage, had jurisdiction of an action for the breach of the contract.

There appears to be no room whatsoever therefore, for suggesting the existence of a jurisdiction in the Saltpond Native Court, especially as not only was the contract effected and the loan made within the Keta jurisdiction, but the performance on the part of the plaintiff was by law prescribed to take place within the Keta jurisdiction; for in the absence of any express provision as to the place of repayment, the plaintiff was by the customary law liable to repay to the defendant at his place of residence within the Keta jurisdiction. That is a well-known and well-recognised concept of customary law that the debtor should take the creditor's money to him at the latter's residence. On the principal ground therefore, on which the plaintiff founds his claim, namely the absence of jurisdiction [p.100] in the Keta Native Court, which would result in all proceedings and processes from that court being null and void and therefore without any legal jurisdiction, it is clear that the plaintiff fails completely.

Counsel for the plaintiff has however put forward a further contention that the document given on the loan?-Exhibit "A" in these proceedings?-constitutes an equitable mortgage, and therefore the native court has no jurisdiction over the transaction. As to that, the answer, I think, is that the document Exhibit "A" is a memorandum of an agreement or transaction which may be an equitable mortgage as contended, (adu Sei v. Ofori Full Ct. 1926-29, 87) or, on the other hand, a customary pledge of lands, (Norh v. Gbedemah) Full Ct., 1926-29, 395) depending on the evidence which might have been adduced by the parties to establish that occupation and/or possession of the lands involved were to remain in the plaintiff during the period of the subsistence of the loan, or were to pass and be transferred forthwith to the first defendant as from the date of the agreement.

It will be observed that the document is merely silent as to the interim occupation of the lands, but not clear and specific as to which of the parties was to have interim possession, as was the case, for example, in Asafu-Adjei v. Dabanka (1 W.A.C.A. 63) where the borrower's continuance in possession was expressly provided for on the face of the document, or the case of Nyako v. Atiadevie (Div. Ct. 1931-37, 120) where the moneylender's entry into occupation was expressly provided for on the face of the document. It is also important to bear in mind, as I have already pointed out, that the document is obviously a memorandum of whatever might have been the real agreement or transaction entered into, and therefore capable of being affected by extrinsic evidence, as in fact most of these types of documents considered by the courts.

See for example, the document involved in the Norh v. Gbedemah (Full Ct. 1926-29, 395) case which had the words:?-"I secure myself with my own lands"?-as the document in this case, Exhibit "A", has the words:?- "I secured to him the following properties of my said father". As will be noticed from a careful perusal of the judgment of the Full Court in that case, the decision proceeded on the grounds that in spite of the terms of the document, which were silent as to the interim possession of the land, the plaintiff himself by the opening statement of his counsel and in his evidence, admitted transfer of possession to the defendant and therefore the transaction was held to be a customary pledge, not an equitable mortgage as contended by the plaintiff appellant in the appeal. See also the observations of Smyly. C.J., in Aradzie v. Yandor (1922 Full Ct. at p. 95) as follows:?-

"In my opinion where a loan has taken place between natives it is quite open to the person giving the loan to take a promissory note for the money lent, as corroborative evidence of the fact that he has lent the money according to native law and custom, without excluding himself from the benefits of the native customary law."

The position therefore is that it is impossible for plaintiff's counsel successfully to contend that on the face of the writ, the claim was one beyond the jurisdiction of the Keta Native Court, and it is significant that when plaintiff objected to the jurisdiction of the Keta Native Court [p.101] and upon his instructions learned counsel on his behalf moved the Magistrate's Court, Keta, for transfer, the point was not raised that on the face of the writ, the claim was beyond the jurisdiction of the native court. It was certainly open to the plaintiff as defendant in the case before the Keta Native Court to have attended and by evidence raise or establish all those circumstances which would go to show that the court had no jurisdiction to determine the action and thereby deprive it of jurisdiction. This however, for reasons best known to himself (which however, are difficult to comprehend) he did not do.

In these circumstances I am of the opinion that he cannot now challenge the legality of the execution founded on proceedings which on the face of them are perfectly regular and in the result I find myself unable to uphold the contention on behalf of the plaintiff that the sale of his house under process of the Keta Native Court was illegal or wrongful as to entitle him to the claim for damages made in his writ and statement of claim, and do hereby dismiss his claim in favour of the defendants with costs.

Decision

<P>Judgment for defendants.</P>

Plaintiff / Appellant

Short

Defendant / Respondent

Swanniker for the first and the third defendant (the auctioneer). Second Defendant in person.

Referals

(1) Cooke v. Gill (1873) L.R. 8 C.P. 107.

(2) Borthwick v. Walton (1855) 24 L.J. C.P. (N.S.) 83.

(3) Newcomb and Another v. De Roos (1859) 2 E. & E. 271; 121. E.R. 103

(4) Aris v. Orchard (1860) 6 H. & N. 160; 158 E.R. 66.

(5) Barnes v. Marshall (1852) 21 L.J.Q.B. (N.S.) 388.

(6) Adjoa v. Nelson and Another Divisional Court,  1931-37, 98.

(7) Payne v. Hogg [1900] 2 Q.B. 43

(8) Sei v. Ofori Full Court, 1926-29, 87.

(9) Norh v. Gbedemah Full Court, 1926-29, 395.

(10) Adjei v. Dabanka and Another 1 W.A.C.A. 63.

(11) Nyako v. Atiadevie Divisional Court 1931-37, 120.

(12) Aradzie v. Yandor Full Court, 1922, 91.

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