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KWAMI v. PARKINSON HOWARD LTD. AND ANOTHER


  • appeal
  • 1960-03-25
  • HIGH COURT
  • GLR 60-66
  • Print

OLLENNU, J.


Summary

Practice?-Jurisdiction?-Action for trespass brought in High Court?-Defendants a non-African limited liability company?-Customary law applicable?-Suit properly cognizable by Local Court?-Throwing away of costs no hardship for purposes of proviso (e) to section 55 of Local Courts Act, 1958.

Headnotes

This was an action in the High Court for damages for trespass. The plaintiff based his claim on his customary tenure of the land. The defendants, a non-African limited liability company, admitting their presence on the land in dispute, relied upon the customary title of the Manya Krobo State Council, which was joined subsequently as a third party.At the hearing the preliminary point was argued whether the High Court had jurisdiction to hear the suit or should stop the progress of the action and refer the parties to the competent local court. Section 55 of the Local Courts, Act, 1958 provides as follows:?-?"Whenever it shall appear to any Court that any civil cause or matter brought before it is one properly cognizable by a Local Court, the Court shall stop the further progress of such civil cause or matter before it and refer the parties to a competent Local Court, and upon so doing may award such costs as to it shall seem fit and in particular may award to the defendant costs as between solicitor and client:Provided always that the obligation as to estoppage and reference imposed upon the Court by this section shall not apply,?-(a) where it is shown to the satisfaction of the Court that the proper Local Court to whom the parties would otherwise be referred under this section is for the time being not functioning; or [p.61](b) if the cause or matter shall have been removed from the Court under section 54 of this Act; or(c) if the cause or matter is one of an interpleader character in which the action of the Sheriff or of a deputy Sheriff is involved; or(d) if the cause or matter is in the nature of a set-off counter-claim or cross-action instituted in the Court in connection with a cause or matter pending in the Court; or(e) in any other case in which the Court is satisfied that it would cause hardship to any party to refer the cause or matter to a Local Court."

Judgement

Action for damages for trespass to land.

By section 87 (1) of the Courts Ordinance in all suits between Africans or persons of African descent, or between persons of African descent on one hand and persons not of African descent on the other, and particularly where the suit relates to the tenure and transfer of real property, customary law is deemed to be the law applicable for the determination of the suit, unless the contrary is shown. In the instant case, therefore, between Africans or persons of African descent on one hand and persons who are not Africans or of African descent on the other hand, customary law is the law deemed to be applicable. The pleadings filed in the suit, far from showing that law other than customary law is that applicable, make it abundantly clear that the plaintiff bases his claim upon his customary tenure of the land in dispute, while the defendant (a corporate body) depends upon the customary title of the third party, namely the Manya Krobo State Council. [p.62]

Section 24 (4) of the Courts Ordinance, which lays down the original jurisdiction in land suits, permits the Land Court to exercise that jurisdiction when certain conditions exist, among those conditions being the absence of a native court or a local court competent to try it. Again, section 18 of that Ordinance prohibits the High Court from exercising jurisdiction in any cause or matter properly cognizable by a native court or a local court. So, too, section 55 of the Local Courts Act, 1958 expressly takes away the jurisdiction of the High Court in any cause or matter coming before the High Court for trial if at any stage of the proceedings in a case it should appear to the court trying it that the said cause or matter is one properly cognizable by a local court.

By Instrument No. L.N. 299 of 1959, the Minister responsible for local courts brought the Local Courts Act into force in the whole of the Eastern Region of Ghana, and created appropriate local courts to exercise the jurisdiction conferred upon a local court by the Local Courts Act. Section 8 of the Act provides that local courts created under it shall have unrestricted jurisdiction as to persons, except as to causes and matters in which the Government of Ghana or any officer acting in his official capacity is a party, or in which the revenue of the Government of Ghana or the acts of any public officer while acting in his official capacity are involved. In this respect the Local Courts Act differs from the Native Courts Ordinances, for under the latter the native courts have jurisdiction only as to Africans or persons of African descent (therein described as "natives") except in some special circumstances. Consequently, the present suit is one properly cognizable by a local court.

It has been submitted by learned counsel for both the defendant and the plaintiff that section 55 of the Local Courts Act cannot be applied in this case because the defendant is a limited liability company, a non-African. That submission cannot be sustained in view of section 8 of the Act which gives a local court unrestricted jurisdiction as to persons, as aforesaid.

Again, by section 10 of the Act jurisdiction is given to a local court created under the Act in all suits relating to ownership, possession and occupation of land where the law applicable is customary law.

Since (by the law as already referred to) the law applicable for the determination of the present suit must be the customary law, and since the parties are all subject to the jurisdiction of a local court, I am bound to hold (subject to what I shall add) that the present suit is one properly cognizable by a local court.

It remains for me to consider whether the proviso to the said section 55 is applicable to the present case, to vest the court with jurisdiction to hear it. Proviso (a) applies where there is no local court constituted in the area of the land in dispute competent to entertain the suit. That proviso, as already indicated above, does not apply by reason of Instrument No. L.N. 299 of 1959 above referred to.

As it now stands, proviso (b) cannot apply because this suit is not a case which has " been removed from the Court under section 54 " of the Act. Here I must observe that perhaps the said proviso (b) was meant to read either " If the cause or matter shall have been removed to the Court under section 54 of this Act?", or ?"If the cause or matter shall [p.63] have been removed from the Court under section 54 of this Act". Comparison of this section of the Act with similar provisions in proviso (b) to section 58 of the Native Courts (Southern Ghana) Ordinance, section 35, proviso 2 of the Native Courts (Ashanti) Ordinance, and the similar proviso in section 58 of the Native Courts (Volta Region) Ordinance, confirms me in this view. But even if proviso (b) is worded as in the Ordinances I have referred to, it could only apply if the cause or matter is one which has been removed to this court under section 54 of the Act, that is removed from a local court. It will be observed that section 54 makes no provision for the removal or transfer of a cause or matter from a local court to a " court " as defined in the Act. It is quite different from section 54 of the Native Courts (Southern Ghana) Ordinance, and from the relevant sections in the other Native Courts Ordinances which empower a magistrate's court either to transfer a case from a native court to a court, or to report the pendency and circumstances of a case to the Chief Justice or to a land judge, when the Chief Justice or the Land Court may transfer the same to the Divisional Court or the Land Court for trial. In any event the instant suit was instituted in this court as of first instance, and was not one transferred or removed to this court under section 54 of the Local Courts Act. The proviso (b), therefore, does not apply to this case.

Nor can proviso (c) or proviso (d) apply, because this is not a cause or matter of an interpleader character, nor is it in the nature of set-off or counterclaim in connection with a pending suit. The proviso which has been argued by learned counsel for the plaintiff as that applicable is proviso (e), which is as follows:?- "(e) in any other case in which the Court is satisfied that it would cause hardship to any party to refer the cause or matter to a Local Court." Before proceeding to deal with the submissions of learned counsel I am constrained to say that the phrase "to refer the cause or matter to a Local Court", appears to me to be an error, because in the body of section 55 the words used are, " refer the parties to a competent Local Court."

Counsel has urged with great force that if the parties are referred to a competent local court, great hardship would be caused to them. That hardship, he contended, is financial hardship, loss of fees paid for the institution of the suit and for the filing of pleadings and other papers, as well as loss of fees paid to retain counsel in the case. In my opinion such loss of fees cannot be a hardship in the contemplation of the Legislature. It would be observed that if the Legislature had considered this to be hardship, it would have made provision for causes and matters commenced and pending in a "court" prior to the date of commencement of the Act. I am confirmed in this view by the fact that the Legislature saw to it that a saving provision was made in the Act for the continuance of causes and matters commenced and pending in any native court prior to the commencement of the Act. This is made abundantly clear in section 16. The Legislature also saw to it that provision was made to save appeals, which might be pending in any "court" prior to the commencement of the Act, from lapsing for want of jurisdiction resulting from the Act's coming into force. Thus in section 53 the following provision is made:

[p.64]

?"Any appeal proceedings in any cause or matter which were immediately prior to the establishment of a Local Court under this Act pending before any Court from Native Court may be continued and concluded by such Court in like manner as if the appeal were from a Local Court and every judgment, order, or sentence given, issued or passed, in such appeal proceedings may be enforced in such manner and the same further appeal if any shall lie therefrom as if it were a judgment, order or sentence in an appeal from a Local Court?".

Without this provision immense hardship would be caused to a party to an appeal?-not financial hardship, but in that although a right to appeal had accrued to him before the Act came into force, yet he would be unable to exercise that right because the court to which he had (or might have) appealed had been deprived of jurisdiction to hear and determine the appeal while the appeal was pending (Saman v. Otsiwaba 2 W.A.L.R. 284). At the same time he could not appeal to the new appellant court because the statutory period within which he could commence fresh appeal proceedings in the latter court had expired (Muffat and Others v. Kpeshie II and Another 14 W.A.C.A. 44). It cannot be argued that the Legislature overlooked the question of cases which might be pending in any ?"court?" at the date when the Act should come into force.

Furthermore, the section as I understand it commands the court to act upon it at any stage in the proceedings at which the court forms the opinion that the suit is one properly cognizable by a local court. This may be when the case first comes before the court, or at the close of pleadings upon summons for directions, or during the course of taking evidence, or even at the close of the whole case but before delivery of judgment.

In my opinion to accept the suggestion that loss of court fees and counsel?'s fees paid by the parties, just by itself, is a hardship contemplated in the proviso (e) to section 55 would be, as will appear presently, to make nonsense of section 24 (4) of the Courts Ordinance, which lays down the jurisdiction of the Lands Division of the High Court, and would reduce to an absurdity the whole idea of the Local Courts Act.

Section 24 (4) (a) of the Courts Ordinance reads as follows:?-

?"(4) Subject to the provisions of section 19 of this Ordinance a Land Court shall have exclusive original jurisdiction to hear and determine any cause or matter relating to the ownership, possession or occupation of land:?-

(a) where there is no Native Court competent to try the cause?".

Section 18 of the Courts Ordinance also provides as follows:?-

?"18. Notwithstanding anything in this Ordinance contained, the High Court shall not exercise jurisdiction?-

(a) In Southern Ghana in any suit cause or matter which the Court considers to be properly cognizable by a Native Court in accordance with the provisions of section 58 of the Native Courts (Southern Ghana) Ordinance save and except in accordance with the proviso to such section?".

[p.65]

For section 58 of the Native Courts (Southern Ghana) Ordinance, I have to substitute section 55 of the Local Courts Act. There is no suit instituted in court where fees are not paid, and it must be presumed that all legal practitioners retained to appear in a suit are paid fees. Jurisdiction is power given to a court to hear and determine a cause or matter. Now the jurisdiction given to the Land Court by section 24 (4) can be exercised only if certain conditions exist at the time when the cause or matter comes before the court. Therefore, if any particular condition is shown not to exist on the day when the cause or matter comes before the Land Court, the Land Court will not have jurisdiction in that cause or matter. The purpose of section 55 (as I interpret it) is that the local courts created by the Act should not be rendered ineffective by reason of litigants bypassing them, and taking their suits before other courts.

I am asked to hold that in itself the loss of fees paid to court and to counsel is hardship which should constrain me to exercise jurisdiction notwithstanding that there is a local court competent to try the cause or matter. If I so held, litigants (knowing full well that a local court had been constituted and was operating in a particular area) in order that they should have their cases heard and determined in a court of their choice, instead of in a local court as provided by law, might be encouraged deliberately to institute their actions in the High Court, engaging counsel and spending a lot of money in going through the preliminary procedural formalities necessary to make the case ripe for hearing, and then, falling back on proviso (e) to section 55 of the Local Courts Act, plead with the court to exercise a jurisdiction which does not belong to it (or which it is prohibited from exercising), urging as a ground that they would suffer hardship, in that they would lose fees paid to the court and to counsel.

This case I am dealing with now illustrates the point I am making. The writ was issued on 11th day of January, 1960, after the Local Courts Act had become operative in this region of Ghana; fees have been paid to the court, and I have no doubt, to counsel. I am asked to exercise my discretion under proviso (e) because those fees would be lost if I were to stop the case and refer the parties to the appropriate local court. If the court yielded to such a temptation and held that financial loss, qua financial loss, comes within the class of hardship contemplated under proviso (e) to section 55 for the exercise of its discretion, it would soon render the Statute nugatory and the local court would have no work to do.

I can imagine cases where hardship would be caused to parties if they were referred to a local court; cases either pending before the date when the Act became operative or instituted in the court after the operative date of the Act. In the present case, however, I am not satisfied that it would cause hardship to any party if I refer the parties to a competent local court as section 55 of the Act makes it incumbent upon me to do. There have been quite a few cases before the courts based upon provisions in other statutes similar to section 55 of the Local Courts Act, No. 23 of 1958. I shall refer to a few of them: Djabartey v. Awua II (4 W.A.C.A. 202), [p.66] Mensah v. Cobbina (5 W.A.C.A. 108), Agyeman and Others v. Panin (6 W.A.C.A. 11) and Benin v. Ababio (2 W.A.L.R. 216). In the last-named case the plaintiff purchased land under an order of the Supreme Court in execution of a judgment debt, and issued a writ of summons in the Supreme Court for recovery of possession of the land; the defendant resisted the claim, contending that under the Stool Property Protection Ordinance, 1951 the sale in execution was void. It was held that the sale by a court, and the Ordinance relied upon, did not change the character of a suit as one relating to ownership, possession and occupation of land between Africans, and that the real issue was to be determined upon customary law. The West African Court of Appeal therefore held that it should have appeared to the trial judge by reason of section 87 of the Courts Ordinance that the law applicable was the customary law, and that as soon as the case came before the court, the learned judge should have proceeded straightaway to apply the provisions of section 35 in the Ashanti Native Courts Ordinance, which is in terms similar to those of section 55, save as to proviso (e).

There is no provision in the Native Courts Ordinance similar to proviso (e) to section 55 of the Local Courts Act, and it is for that reason that I have dealt at length with the hardship alleged, in order to make apparent the principles on which I have exercised my discretion and to give the Court of Appeal (in case an appeal is taken from this ruling) material on which to determine whether or not the discretion given me has been properly exercised.

Since I have formed the opinion that the suit before me is one properly cognizable by a local court, and since none of the provisos (a), (b), (c), and (d) of section 55 of the Act applies, and since I am not satisfied that any hardship would be caused to any party to refer the parties to a competent local court, I am bound to comply with the mandatory terms of the said section, i.e.: "The Court shall stop the further progress of such civil cause or matter before it and refer the parties to a competent local court". I therefore stop the further progress of the case, and I refer parties to the appropriate local court. The section directs that upon such stoppage and reference the court "may award such costs as to it shall seem fit, and in particular may award to the defendant costs as between solicitor and client." I do not see fit in this case to award any costs, because the defendant himself resisted the court's acting upon the mandatory power. I therefore make no order as to costs.

Decision

<P>Parties referred to appropriate local court.</P> <P>No order as to costs.</P>&nbsp;

Plaintiff / Appellant

Puplampu

Defendant / Respondent

Sampson

Referals

(1)  Saman v. Otsiwaba 2 W.A.L.R. 284;

(2)  Muffat and Others v. Kpeshie II and Another 14 W.A.C.A. 44;

(3)  Djabartey v. Awua II 4 W.A.C.A. 202;

(4)  Mensah v. Cobbina 5 W.A.C.A. 108;

(5)  Agyeman and Others v. Panin 6 W.A.C.A. 11;

(6)  Benin v. Ababio 2 W.A.L.R. 216.

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