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TANDOR VIII & ANOR. v. NTAMNA III & ANOR. AND IN THE MATTER OF THE NATIVE COURTS (SOUTHERN TOGOLAND) ORDINANCE AND IN THE MATTER OF APPLICATION FOR LE


  • New
  • 1959-01-29
  • HIGH COURT
  • GLR 43-44
  • Print

SIMPSON J.


Summary

Certiorari?-Powers of Magistrate in Southern Togoland?-No power to strike out action in Native Court.

Headnotes

A land suit, instituted in the Kete-Krachi Native Court "B," was transferred (by order of the Magistrate's Court Kete-Krachi) to the Buem-Krachi Native Court "A" at Jasikan.While the suit was pending, an interlocutory application was filed by the defendants before the Government Agent at Jasikan for an order to strike out the suit on the ground of res judicata. The application to strike out was granted on 26th November, 1958.The plaintiffs applied to the Divisional Court for an Order of Certiorari.(Misc. Matter, Suit No. T.V.T. 9/1958.)

Judgement

(His lordship stated the history of the Matter, and proceeded): ?-

Under the Native Courts (Southern Section of Togoland) Ordinance, the powers of a Magistrate in land causes are restricted to transferring a matter to another Court (section 54), and hearing appeals where the subject matter in dispute is under 50 in value (sections 46 and 47). The powers of a Government Agent are not exercisable in land causes (sections 61-63). There is no evidence of the value of the subject-matter in this case, but there is no doubt that the action taken in the Magistrate's Court was not by way of appeal under the provisions of section 46. [p.44]

I am satisfied that the Magistrate had no jurisdiction to make an order striking out the action in the Native Court. Any such application to strike out should have been made to the Native Court itself. Although it may well be that strong grounds exist for pleading res judicata, I must grant the application for certiorari.

I order the proceedings in the suit entitled Nana Kofi Tandor VIII of Tutu kpene and Yaa Kpola, plaintiffs, versus Nana Kwadjo Ntamna III (Successor to the late Nana Oseini of Bontebor) and Reverend Wampah, E. P. Church, Ahamansu, defendants, before the Magistrate's Court (constituted by the Government Agent) Jasikan, including the ruling given on 26th November, 1958, to be produced and brought before this Court to be quashed, and the same are hereby quashed.

Decision

<P>The respondents will pay the applicants' costs, assessed at 20 guineas.</P>

Plaintiff / Appellant

Defendant / Respondent

Referals

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