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  • appeal
  • 1961-06-26
  • GLR 427-431
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Native courts?-Consolidation of cases?-Whether an order to try two cases together is tantamount to consolidating them.


Prempeh filed a writ of summons against Ado in the Accra East Local Court claiming a declaration of title to a piece of land. That action was sealed as suit No. 239/60. Subsequently Ado also took a similar action against Prempeh in the same court; that became suit No. 252/60. On suit No. 239/60 coming on for hearing the following minute was made in the record book:"Suit No. 239/60E. A. A. Prempehv.Martin AshiamohBoth parties present. The defendant stated that he had instituted another action against plaintiff about the same land by way of counterclaim. [p.428]The plaintiff admitted having received civil summons suit No. 252/60 concerning this very land. By Court: This case shall be heard together with suit No. 252/60 as one case as evidence would be similar in the two respective cases. Both cases set down for hearing on the 23rd June, 1960".The two cases were accordingly heard together. Ado lost. He appealed to the Land Court, Accra, arguing, inter alia, that the trial before the Accra East Local Court was a nullity because the local courts have no power to consolidate actions.


APPEAL from the judgment of the Accra East Local Court in a consolidated suit. The appeal was allowed on the merits. This report is concerned solely with the question of consolidation.

The appeal is against the decision of the magistrate of the Accra East Local Court in two cross-actions by the same parties against each other for declaration of title in respect of the same piece or parcel of land situate at Labadi which the magistrate tried together. The first action was No. 239/60 in which the respondent in this appeal, as plaintiff, sued the appellant before the court claiming that the latter had trespassed on a portion of an area of land granted to him by the head and elders of the Abafum quarters of Labadi by customary grant about seven years ago and subsequently confirmed by a formal deed of conveyance dated the 30th December, 1959.

The second action was No. 252/60 in which the appellant before this court, as plaintiff, sued the respondent claiming that the latter had trespassed on a portion of an area of land granted to him also by customary [p.429] grant as far back as 36 years ago by the elders of the Labadi Presbyterian Mission. The Mission had made their grant in exchange or substitution for a parcel of his family land which the appellant had granted to them for the establishment of what is now the Presbyterian Senior Boys' School, Labadi. The magistrate after hearing all the evidence and inspecting the parcel of land, the subject-matter of the two actions, gave judgment in favour of the respondent upholding his claim as plaintiff in the first action and dismissing the claim against him as defendant in the second action. Accordingly the appellant has appealed against the magistrate's decision in both cases tried together. Counsel on his behalf has submitted, firstly, that the magistrate had no jurisdiction to consolidate and try the two actions together and that by doing so the resulting proceedings and judgment are a nullity. As to that submission, it is sufficient to say I do not find that the magistrate used the word "consolidate" or the word "consolidation" in connection with the order which he made, although it is true he ordered the two cases to be "heard together." The material entry appearing in the record was the following:

"Suit No. 239/60

E. A. A. Prempeh


Martin Ashiamoh

Both parties present.

The defendant stated that he had instituted another action against plaintiff about the same land by way of counterclaim. The plaintiff admitted having received civil summons suit No. 252/60 concerning this very land.

By Court: This case shall be heard together with suit No. 252/60 as one case as evidence would be similar in the two respective cases. Both cases set down for hearing on the 23rd June, 1960".

If it is this order for hearing a claim and a counterclaim together which it is contended the magistrate, functioning in place of the old native court or tribunal, has no jurisdiction to make, then I am afraid I cannot agree. By the customary practice and procedure prevailing in the old native courts or tribunals from the earliest times, when one person swore an oath to make a claim and thereby initiate proceedings, and the other party swore in response to counterclaim, the respective claims were not regarded and taken or treated as two separate and distinct ones to be dealt with separately but on the contrary were considered and accepted as one claim or dispute and dealt with as such. In Yerenchi v. Akuffo,1 Griffith, C.J. explains as follows: "swearing an oath upon a person is only the ancient form of initiating legal proceedings. If the oath is obeyed nothing happens, if disobeyed . . . the matter is reported and the equivalent to a summons is issued." In the circumstances above explained, if instead of obeying the oath sworn the other party should defy the party who first swore and then counter-swear to claim, for example, that the land claimed by the party who first swore belongs rather to him, the counter-swearer, it is [p.430] common knowledge that the native tribunal which had to deal with the matter would not formulate two separate claims to be dealt with separately, but only one claim for ownership of the land as between the two persons who by oath and counter-oath had claimed ownership, and deal with the matter as such. It is in Ashanti particularly that proceedings are commenced in that manner, and there are on record several cases so begun, some reported but the majority not reported. An instance of the reported ones is that leading case prescribing the circumstances or conditions which must accompany long occupation of stool land as to bar or preclude the stool from asserting its title, the case of Nchirahene Kojo Ado v. Buoyemhene Kwadwo Wusu2 where it is set out that:

"This case began in the Asantehene's Divisional Court "B" held at Kumasi with the following issue:?-

'The plaintiff swore the Great Oath that a parcel of land known and called "Taa Kokoti" belongs to him and that he occupied it before the defendant overtook him there and the defendant also responded that the said land belongs to him and with it he serves Nana Hemaa'."

An instance of the unreported ones is the suit entitled Kwesi Buor. v. Chief Kojo Sarfo Ababio II3 which commenced with the issue:

?"Plaintiff swore to the Great Oath that the cocoa farm which is situated at Ahantra at right hand side is the Plaintiff's own property and not for the Plaintiff's deceased grandmother Yaa Nyankru - and the Defendant responded that the said farm belonged to his Defendant's Stool servant Yaah Nyankru (deceased) and he (Defendant) is therefore entitled to all the properties of the said Yaa Nyankru for his Stool.?"

It was dealt with as a suit between a plaintiff and defendant in which the trial court, the Asantehene's Divisional Court "B" gave judgment for the plaintiff, and the Asantehene's Appeal Court "A" confirmed the decision in favour of the defendant and it eventually became Civil Appeal No. 65/50 before the West African Court of Appeal which dismissed the appeal (unreported), thereby confirming the Land Court's decision, on 14th January, 1952.

In respect of cases in what is now Southern Ghana commenced in that way, there is the reported case Opanin Kwame Adu v. Kwasi Kuma,4 which commenced before the tribunal of the Omanhene of New Juabeng sitting on the 29th October, 1936, by a claim in the following terms, according to the record of appeal:

"For that plaintiff on the 6th day of October, 1936, at Asokore in the New Juaben District and within the jurisdiction of this Tribunal did swear the lawful and recognised oath of Omanhene [of] New Juabeng alleging that the cocoa farm situate lying and being at Mpeiho in New Juabeng District is Plaintiff's bona fide property and you defendant responded the oath that the said farm is defendant's bona fide property."

Dealing therefore with a claim and counterclaim as one and the same proceedings is not by any means an innovation in the practice and procedure [p.431] of the former native Court, now the local courts introduced comparatively recently, but has been a form or method well-known, recognised and followed, since tribunals or native courts existed in this country. And if that be so, can it make all that much difference because the claim on the part of the plaintiff and the counterclaim on the part of the defendant, instead of being commenced by the swearing of an oath, were commenced by the application for and the issue of formal writs of summons? The order made by the magistrate to try the two cases together as one and the same proceedings was therefore, in my view clearly within his competence by reason not only of section 24 of the Local Courts Act, 19585 (under which this action was tried) which provided that: "the procedure and practice shall be regulated in accordance with customary law" but also regulation 40 of the Native Courts (Colony) Procedure Regulations6 which provided that: "A Native Court may in its discretion, make any order within its powers and jurisdiction which it considers necessary for doing justice, whether such order has been asked for by the party entitled to the benefit of the order or not?".

In the particular circumstances of the two cross-actions with which we are here concerned, it would have been obviously quite farcical and ludicrous, if not impossible, to endeavour to try the first of them in order of date of institution separately and without reference to the other, and then turn to the second action and attempt to deal with that separately likewise. The order to deal with them together was therefore not only a matter of necessity but eminently most desirable from every point of view. All too often we are prone to think in terms of English rules of procedure or rules of court even when we are dealing with proceedings of local courts. The tendency should be held in check, bearing in mind the observations of Lord Keith when delivering the judgment of the Judicial Committee of the Privy Council in Nana Kwei Gyarku III v. Joseph Sam Brew anor.7 When in respect of proceedings of one of the native courts which took place when one of the parties on record had died and there had been no formal order of substitution, and the proceedings were therefore challenged as being defective on that and other grounds, he pointed out as follows:

?"It might seem that a number of things were done which in other systems of law and procedure would be regarded as irregularities or even nullities; but their Lordships are here concerned with a Native Court acting under special Ordinances and Regulations and in conditions which cannot be exactly paralleled in systems with a long established legal practice and tradition.?"

I am unable therefore to uphold the first contention or submission as to jurisdiction.


<P>Appeal dismissed on the question of jurisdiction but allowed on the merits.</P>

Plaintiff / Appellant

J. Arthur

Defendant / Respondent



(1)  Yerenchi v. Akuffo (1905) 1 Ren. 366

(2) Nchirahene Kojo Ado v. Buoyemhene Kwadwo   Wusu (1938) 4 W.A.C.A. 96

(3) Kwesi Buor v. Chief Kojo Sarfo Ababio II, Court of Appeal, January 14, 1952, unreported

(4) Opanin Kwame Adu v. Kwasi Kuma (1937) 3 W.A.C.A 240

(5)  Nana Kwesi Gyarku III v. Joseph Sam Brew & anor. [1957] J.A.L. 49, P.C.

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