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MENSAH v. AHODJO


  • appeal
  • 1961-05-31
  • HIGH COURT
  • GLR 296-301
  • Print

CRABBE, J.


Summary

Practice?-Action commenced in court with appropriate jurisdiction?-Jurisdiction taken away by subsequent legislation?-Saving clause in later legislation that pending causes "shall be continued and concluded" by court?-Whether court has jurisdiction to hear case?-Native Courts (Ashanti) Ordinance, Cap. 99 (1951 Rev.), s.7?-Local Courts Act, 1958, ss. 10 and 16?-Courts Act, 1960 (C.A.9), ss. 98 and 149.Land law?-Trespass?-Action against a defendant in possession.

Headnotes

The plaintiff filed a writ in the Bechem Native Court in 1958 claiming damages for trespass. At that time native courts in Ashanti were governed by the Native Courts (Ashanti) Ordinance, Cap. 99 (1951 Rev.), which gave the courts unlimited jurisdiction in land cases. The Bechem Native Court was dissolved by section 4 of the Local Courts Act, 1958, and a local court established in its stead, with power to carry on and determine cases or matters pending before the dissolved native court. The jurisdiction of the local court in land cases was again unlimited. On the 1st July, 1960, the Courts Act, 1960 (C.A.9) came into force. Sections 98 (2) and 149 (1) provide as follows:?"98 (2) Where it appears that the subject-matter of a land cause exceeds G200 the Court shall not exercise jurisdiction except with the consent of the parties." [p.297] ?"149 (1) Every case pending before a Local Court immediately before the commencement of this Act shall be continued and concluded by the corresponding Local Court referred to in this Act."On the 22nd August, 1960, the plaintiff filed a motion supported by an affidavit objecting to the Bechem Local Court?'s jurisdiction on the ground that the land, the subject-matter of the dispute was worth more than G200. The local court magistrate ruled against him, and proceeded to hear the case. The plaintiff lost the action. He appealed.

Judgement

APPEAL from the judgment of the Bechem Local Court on a question of jurisdiction in a land case. The facts and the sections of the relevant statutes are more fully set out in the judgment.

This is an appeal from the decision of S. O. Bobie-Ansah, Esq., local court magistrate, sitting at Bechem. The claim in the suit reads as follows:

"PARTICULARS OF THE PLAINTIFF'S CLAIM

1. The plaintiff is the owner in possession of a cocoa farm situated on Derma stool land at a place commonly known and called Adaa.

2. On or about the 10th September, 1957, the Defendant entered the Plaintiff?'s said cocoa farm and wrongful and maliciously cut down and/or destroyed over 2,000 (two thousand) cocoa trees in the Plaintiff?'s said farm.

3. By reason of the Defendant?'s said malicious and wrongful act, the plaintiff has suffered damage and loss.

4. Wherefore the Plaintiff claims from the Defendant the sum of seven hundred pounds (700) being as to 600 Special Damage, and 100 - General Damages for damage done to and for wrongful cutting down and destroying the Plaintiff's cocoa trees in the Plaintiff's farm situate at a place commonly called Adaa on Derma stool land.

DATED AT KUMASI THIS 31st DAY OF MAY, 1958

(Sgd.)

PLAINTIFF

It appears that the case was first called at the local court on the 22nd August, 1960, when the plaintiff filed a motion supported by an affidavit by which he objected to the jurisdiction of the court on the ground that the value of the disputed land was above G200. The local court magistrate [p.298] overruled this preliminary objection as he thought that his court had an unlimited jurisdiction in land cases.

Having ruled on the objection the magistrate then adjourned further hearing to the 29th August, 1960.

It appears from the application for a writ of summons in this suit and the hearing notice that the case was originally pending before the Bechem Native Court before the 7th June, 1958. At that date the Native Courts (Ashanti) Ordinance1 was the law relating to native courts in Ashanti. Section 7 (1) of Cap. 99 states the jurisdiction of a native court as follows:

"7. (1) Every Native Court shall have full jurisdiction and power, to the extent set forth in the order establishing it and subject to the provisions of this ordinance in all civil and criminal cases in which all the parties are natives and the defendant was at the time when the cause of action arose resident or being within the jurisdiction of the Court or in the case of a criminal matter is accused of having wholly or in part within the 'jurisdiction of the Court, committed or been accessory to the committing of an offence:

Provided always that a Native Court shall not, unless the parties shall agree thereto, have any jurisdiction in any cause or matter where it appears either from express contract or from the nature of the transaction out of which the cause or matter shall have arisen that the parties expressly or by implication agreed that their obligations in connection with such transaction should be regulated substantially according to the provisions of some law or laws other than native customary law, or where otherwise some other such law or laws is or are properly applicable thereto."

In this section the jurisdiction of the native court was limitless in all civil cases in which the parties were natives and in which the defendant resided within the jurisdiction of such native court.

By the 22nd August, 1960, when the case came before the local court, the Local Courts Act, 1958, had come into operation, and the Bechem Native Court had been dissolved by virtue of section 4 of that Act. This new legislation makes provision for causes or matters begun and pending in a native court. Section 16 reads as follows:

"16 (1) Subject to the provisions of sub-section (2) of this section, any cause or matter begun and pending in a Native Court immediately prior to the establishment of a Local Court area under this Act in the area of jurisdiction of such Native Court shall be disposed of in the following manner-

(a) if it is a cause or matter of first instance it shall be continued and concluded in the appropriate Local Court constituted under this Act, and every judgment order or sentence in any such cause or matter may be enforced in the same manner and the same appeal, if any, shall lie therefrom as if it were a judgment order or sentence in a cause or matter originally instituted in the said Local Court; and

(b) if it is a cause or matter on appeal the appeal shall lie to the appropriate District Court and subject to the provisions of this Act the same appeal, if any, shall lie therefrom as if the appeal had originally been instituted in the said District Court.

(2) No further fees shall be payable by any party by reason only of the transfer of any cause or matter to a Local Court or to the District Court under the provisions of this section.

(3) The record of proceedings of any cause commenced in any Native Court which is unconcluded or the judgment order or sentence in which has not been enforced shall, at the request of any party thereto, be sent by the person having the custody thereof to the appropriate Local Court constituted under this Act." [p.299]

So that the local court of the Bechem area became vested with jurisdiction to dispose of this suit on the dissolution of the Bechem Native Court.

The civil jurisdiction of the local courts at the time, in land cases, was prescribed by section 10 (1) of the Local Courts Act, 1958. The section reads:

?"10. The civil jurisdiction of a Local Court shall be as follows:-

(i) suits relating to the ownership, possession or occupation of land where the law applicable is customary law.?"

The jurisdiction of the local court is in no way restricted by section 10(1) of the Local Courts Act, 1958. The Local Courts Act, 1958, was itself repealed on the 1st July, 1960, by the Courts Act 1960.2

Section 98 of the Courts Act, 1960, states the civil jurisdiction of the local courts created under that Act. In subsection (2) of section 98 a limitation is placed on the exercise of this jurisdiction. The section reads as follows:

?"(2) Where it appears that the subject matter of a land cause exceeds G200 the Court shall not exercise jurisdiction except with the consent of the parties."

It was because of this provision, I think, that the plaintiff raised his objection to the jurisdiction of the local court on the 22nd August, 1960. In my view the objection could have been sustained had it not been for the provisions of section 149 (1) of the Courts Act, 1960, which deals with pending cases at the commencement of the Courts Act, 1960. The section reads:

?"149 (1) Every case pending before a Local Court immediately before the commencement of this Act shall be continued and concluded by the corresponding Local Court under this Act.?"

In this section the operative words, in my judgment, are "shall be continued and concluded by the corresponding Local Court under this Act." This suit was pending before the 1st July, 1960, at the local court created under the Local Courts Act, 1958, and in my view the object of section 149 (1) of the Courts Act, 1960, is to enable the local courts under that Act to hear cases already pending before the 1st July, 1960, notwithstanding the limitation placed on the successor of the old local courts.

This point seems to have been discussed in the case of Nyako v. Akwa Ors.3 In delivering the judgment of the court in that case Verity, C.J. said:

?"The learned Judge who heard the appeal, held that the suit having been adjourned when the Grade ?'B?' Court was closed and the Grade ?'A?' Court came into existence, and the Grade ?'A?' Court having heard the case de novo there was no irregularity. I think in this the learned Judge erred. The proceedings had been commenced in one Court and were heard and determined in another. Neither the Native Courts Ordinance No. 22 of 1944 nor the Order-in-Council which abolished the first Court and constituted the second made any saving in regard to pending causes and in the absence of any such saving it appears to me that all causes pending in the Grade ?'B?' Court were brought to an end when that Court was closed. The correct procedure would have been, therefore, to commence the suit de novo in the Grade ?"A?" Court.?" [p.300]

See also Saman v. Otsiwaba4. On the authorities it seems to me to be a settled principle that where a repealing enactment makes any saving in regard to pending causes or matters, such as section 149 (1) of the Courts Act, 1960, these causes or matters "shall be continued and concluded". In the Nyako case (supra) the jurisdiction of the new court was enlarged, and it was held that cases pending before the old court were abolished by the new legislation unless there was a saving provision. In the Saman case (supra) the jurisdiction of the new court was curtailed. In that case the action failed because there was no saving enactment with regard to the cases pending before the previous courts. In my view, therefore, the magistrate was justified in overruling the objection raised by the plaintiff and assuming jurisdiction to hear the case.

The second ground of appeal which was argued is stated in this way: ?"That the judgment of Trial Court is against the weight of evidence." The evidence on record shows that both the plaintiff and the defendant were strangers living at Adaa village. On the request of the defendant, one Thomas Mensah who deputised as Odikro of Adaa village for his brother, Kwadwo Manu, granted a portion of land at Adaa to the defendant and his three brothers in consideration of a sum of G12 paid by each of the brothers. These sums of money were paid to the substantive Odikro, Kwadwo Manu, at a village called Kobreso. The Odikro sent the whole of this amount to the Dermahene who appears to be the overlord. Some time later a new Dermahene was installed and he drove the defendant and his brothers from the lands alloted to them. The various amounts they each paid were refunded to them. It was after this ejectment by the Dermahene that the plaintiff applied for land and Thomas Mensah gave him a portion of the defendant's forest for a consideration of G10. Thomas Mensah was the first witness for the plaintiff, and in answer to questions by the trial court he said as follows:

?"That G10 paid to me by plaintiff for Dermahene was later returned by me to plaintiff. I refunded the G10 because Dermahene refused to accept it. The land I gave to plaintiff was given out about 3 years ago. The late uncle of plaintiff died about 3 years ago. The land in dispute was given out to defendant about 7 years ago. The portion of the land I gave to plaintiff was really for defendant. I knew defendant is Ewe and plaintiff from Menwere in Ashanti. Both plaintiff and defendant are all deemed strangers."

It seems from the evidence that both the plaintiff and the defendant were dispossessed of the lands granted to them by Thomas Mensah but subsequently the defendant returned to the land. The plaintiff said: "later when I visited the farm I met defendant. I questioned defendant as to who gave him the land. He replied that it was Dermahene who asked him to plough and they share it in three parts . . . ." After making a report to the police the plaintiff subsequently handed over the matter to his solicitor for necessary action. As a result an action was filed by the plaintiff at the Bechem Native Court. Accepting the evidence as it is, it seems to me that both plaintiff and defendant became trespassers on the land after they had been ousted, and the maxim is melior est conditio possidentis, ubi jus habet. The plaintiff himself being out of possession he cannot maintain an action [p.301] of trespass against the defendant. It is a well-known principle of law that possession of a defendant will prevail against the whole world except the true owner, and therefore a plaintiff who claims title and a recovery of possession against the defendant in possession must prove that his title is better than that of the defendant. No matter how defective the title of the defendant is, his possession is good against all but the true owner.

This is an action for trespass and the plaintiff is under a duty to establish a prima facie case that, (1) he was in possession, or (2) that he was the true owner. The plaintiff failed to establish either of these two conditions and I think that the magistrate was justified in dismissing the plaintiff?'s claim as he purported to do under regulation 73 of the Local Courts Procedure Regulations, 19595. Mr. Effah for the appellant also referred to the recent case of Donkor v. Danso6 and submitted that it was unlawful to eject the plaintiff from the land because a usufructuary owner cannot be ejected in that way. This principle is subject to this qualification that the usufructuary owner should recognise the title of the real owner. Even if this point is tenable I think it applies with equal force to the case of the defendant, and where the equities are equal the first in time prevails.

In my view there is no substance in either ground of appeal. The appeal is therefore dismissed with costs assessed at G12 12s. Under regulation 73 of the Local Courts Civil Procedure Regulations, 1959, judgment should have been entered for the defendant. I therefore vary the magistrate?'s order of non-suit and enter judgment for the defendant.

Decision

Appeal dismissed.

Plaintiff / Appellant

D. S. Effah

Defendant / Respondent

R. E. Oduro

Referals

(1) Nyako v. Akwa & Ors. (1949) 12 W.A.C.A. 465

(2) Saman v. Otsiwaba (1957) 2 W.A.L.R. 284

(3) Donkor v. Danso [1959] G.L.R. 147.

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