BAKUMA AND OTHERS v. EKOR AND OTHERS [1972] 1 GLR 133
COURT OF APPEAL
Date: 19 JULY 1971
BEFORE: AZU CRABBE J.S.C., JIAGGE AND SOWAH JJ.A.
CASES REFERRED TO
(1) Foli v. Akesse (1934) 2 W.A.C .A. 46, P.C.
(2) Nyame v. Yeboah [1961] G.L.R. 281, S.C.
(3) R. v. Bolton (1841) 1 Q.B. 66; 5 J.P. 370; 118 E.R.1054.
(4) R. v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128; 91 L.J.P.C. 146; 127 L.T. 437; 38 T.L.R. 541; 27
Cox C.C. 253, P.C.
(5) R. v. Fulham, Hammersimth and Kensington Rent Tribunal; Ex parte Zerek [1951] 2 K.B. 1;
[1951] 1 T.L.R 423; 115 J.P. 132; 95 S.J. 237; [1951] 1 All E.R. 482, D.C.
(6) Timitimi v. Amabebe (1953) 14 W.A.C.A. 374.
(7) R. v. Judge Pugh; Ex parte Graham [1951] 2 K.B. 623; [1951] 2 T.L.R. 253; [1951] 2 All E.R. 307,
D.C.
(8) R. v. Governor of Brixton Prison; Ex parte Kwesi Armah [1968] A.C. 192; [1966] 3 W.L.R. 828;
131 J.P. 43; 110 S.J. 890; [1966] 3 All E.R. 177, H.L. [p.135] of [1972] 1 GLR 133
(9) Anisminic v. Foreign Compensation Commission [1969] 2 A.C. 147; [1969] 2 W.L.R. 163; [1968]
1 All E.R. 208, H.L.
(10) Baldwin & Francis Ltd. v Patents Appeal Tribunal [1959] A.C 663; [1959] 2 W. L.R. 826; 103 S.J.
451; [1959] 2 All E.R. 433, H.L. (11) R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 K.B. 338; [1952] 1 T.L.R. 161; 116 J.P .54; 96 S.J. 29; [1952] 1 All E.R. 122, C.A.
(12) Seereelall Jhuggroo v. Central Arbitration and Control Board [1953] A.C. 151, P.C.
(13) R. v. Fulham, Hammersmith and Kensington Rent Tribunal; Ex Parte Hierowski [1953] 2 Q.B.
147; [1953] 2 W.L.R. 1028; [1953] 2 All E.R. 4, D.C.
(14) Board of Trustees of the Maradana Mosque v. Badiuddin Mahmud [1967] A.C 13; [1966] 2 W.L.R. 921; 110 S.J. 310; [1966] 1 All E.R. 545, P.C.
(15) Ohene of Assachere v. Ohene of Dadiase (1941) 7 W.A.C.A 86.
(16) Tsibu v. Kyei (1922) F.C. ‘22, 13.
(17) Sogo v. Yaw Krampa (1922) F.C ‘22, 22.
(18) Kpomago v. Gabienu, Court of Appeal, 16 February 1970, unreported.
(19) MacFoy v. United Africa Co., Ltd. [1962] A.C. 152; [1961] 3 W.L.R. 1405; 105 S.J. 1067; [1961]
3 All E.R., 152 P.C.
NATURE OF PROCEEDINGS.
Appeal from a decision of the Divisional Court, Ho, wherein the trial judge held that the respondents were estopped by a previous decision of a magistrate given in 1933 relating to the same subject-matter between the parties. The facts are sufficiently stated in the judgment of Sowah J. A.
COUNSEL
E. D. Kom for the appellants.
Gikunoo for the respondents.
JUDGMENT OF SOWAH J.A.
In September 1952, the plaintiffs applied for a writ of summons to issue against the defendants in the
Native Court B, Honuta, claiming a declaration of title to the land described therein, recovery of
possession, perpetual injunction and damages for trespass.
In February 1953, upon the application of the plaintiffs that the dispute involved difficult points of law, the suit was transferred to the High Court, Ho, where pleadings were ordered.
The following averments in the statement of claim are pertinent.
“(1) The plaintiffs being the chief and elders of the Honuta stool are the owners in possession of all piece or parcel of land situate lying and being at Honuta and bounded on the north by Hanyigba Todzi land, on the south by the land of the Klore on the east by a boundary line fixed by a judgment of the magistrate court dated 31 July 1953 in the suit entitled Chief Akoto versus Divisional Chief Ayisah and on the West by Honuta stool land. [p.136] of [1972] 1 GLR 133 (2) The land in dispute knows as Ayeho was originally founded by the forefathers of the plaintiffs when they migrated from Notse and were led to the land by a man called Awudatsi and the plaintiffs’ ancestors lived and farmed the land without interruption for a considerable time. (3) As the place which is on a hill top was found in later years to be too cold, the plaintiffs’ ancestors removed to the valley now known as Honuta, but still farmed the land in dispute and have cocoa farms on the said land. (4) About twenty-five years ago, the land in dispute was encroached upon by the Awoame people including the defendants and the Chief of Awoame instituted an action for trespass against the first plaintiff. (5) The said Chief Akoto of Awoame failed to prove his possession of the land and the then magistrate demarcated the eastern boundary now known as Gutch boundary between the land belonging to the plaintiffs and defendants respectively. (6) A few years ago the defendants crossed the said Gutch boundary and trespassed into the plaintiffs’ land and farms. Wherefore the plaintiffs claim against the defendants the reliefs sought for in the writ of summons. ”The defence was a general denial coupled with an assertion that there has been a prior demarcation of the land by one Dr. Grummer, a German administrator in 1914, between the predecessors of the parties. “The plaintiffs,” so runs the defence, are estopped from relitigating the issue.”
Three issues were set down summons for directions but for the purposes of this appeal, only one is
germane, namely: “(3) Whether there was litigation on the land in dispute between Awoames and the first plaintiff on or about 1933 and whether there was a judicial demarcation of the boundary by Mr. John Gutch and whether such demarcation is binding on the defendants and estops them from disputing the plaintiffs’ title and possession of the land in dispute. ”An order for a plan was given with directions that the respective boundary of the parties be shown with special reference to the Gutch demarcation. Finally, hearing of the suit began on 11 April 1960, a time lapse of seven years from the issue of the writ.
The facts of this case, stated shortly, are as follows: The plaintiffs were from Honuta and the defendants were their neighbours from Woame. There appeared to be a hill, a sort of no man’s land, originally separating the two towns. With the advent of cocoa cultivation, there was a scramble for the land on the hill-top and the hill-top was reduced to arable land. This occupation occasioned incessant disputes between the neighbours, eventually in 1933, the Chief of Woame (the chief of the present defendants), took out a writ against the Chief of Honuta and his subjects, [p.137] of [1972] 1 GLR 133 claiming in trespass and consequential damages. The Chief of Honuta for equal measure, counterclaimed for similar reliefs and the suit came up for hearing before the Magistrate’s Court, Ho, constituted by the assistant district commissioner, a John Gutch, Esquire. The basis of the claim and counterclaim was that the area in dispute was first settled thereon by the ancestors of the parties but that either chief had allowed his subjects to trespass thereon. It appears that the learned magistrate was aware of the limitations to his jurisdiction; for he examined the claims before him and came to this conclusion that: “It is clear therefore the title to the land in question is in dispute between the two parties. The chiefs appear as representatives of their people farming on this land and the boundary in dispute is that between the Woames and the Honutas. ”The learned magistrate derived his jurisdiction from section 79 of the Native Administration (Southern Section) Ordinance, 1932, which provides that: “The District Commissioner’s Court shall have and exercise jurisdiction to hear and determine any cause or matter relating to the ownership, possession or occupation of land in the Southern Section where for any reason it is uncertain (a) if the land is situated within the jurisdiction of any Native Tribunal established under section forty-two of this Ordinance. (b) in the jurisdiction of which Native Tribunal the land is situated. ”Thus, at the time he embarked upon his inquiry, he had jurisdiction. He proceeded to make the following pronouncements and orders at its conclusion: “Since this time, the forest and the planting of young cocoa trees in this area seems to have been continued by both the Woames and the Honutas with frequent disputes and even resultant violence. I have actually been shewn young cocoa trees which both a Woame and a Honuta man claim to have planted. I am convinced that the origin of these disputes lies in the fact that neither the Woames nor the Honutas have any idea where their boundaries really are, since they have never been fixed nor agreed upon. ”He concluded thus: “It remains in order to obviate disputes and actions of this nature in the future to draw between these two people as just a boundary as I am able.” He showed the boundary line he had demarcated and caused a plan to be drawn thereupon. The plaintiffs then, namely, the Chief of Woame and his subjects refused to have anything to do with those orders. Neither party appealed or attempted to set aside the judgment of Gutch up to this date.
Several years after, subjects of the plaintiffs in this suit were farming on the land now in dispute, when at the instance of the defendants, they were arrested and prosecuted. They were discharged when the magistrate [p.138] of [1972] 1 GLR 133 held that there was a bona fide dispute as to title between the complainants and the accused persons. Subsequently, the plaintiffs herein took out a writ to assert title. The evidence led by the plaintiffs was brief and consisted in reiterating the history of their original settlement and tendering the proceedings and judgment in the 1933 suit. The defendants had denied generally in their pleadings the existence of the judgment; in evidence, however, they were obliged to admit knowledge of it, but challenged its validity and effect. Addresses of counsel before the Divisional Court, Ho, concerned principally, the validity of that judgment.
It seems regrettable that though the theme of addresses was on the validity of Gutch’s judgment, the
learned judge failed to examine the argument and authorities fully brought to his notice and was content to hold: “Counsel for the defendants submitted that as it was not a suit for demarcation of boundaries and as there was nothing in the record to show the district commissioner had the powers of a lands boundary settlement commissioner there was a total lack of jurisdiction which rendered the judgment nugatory. It may be — I express no opinion on this point — that the assistant district commissioner was wrong in demarcating a boundary in this case but that would not amount to a total lack of jurisdiction. There is no doubt that he had jurisdiction to hear the case. The remedy of a dissatisfied party lay in an appeal. I find that the Gutch judgment was a valid one and that it created an estoppel. ”It is from this judgment that this appeal has arisen. Mr. Kom for the appellants, founded his argument on two grounds: first, that the learned magistrate, Mr. Gutch, had no jurisdiction to entertain the case because he was not a boundary demarcation commissioner; secondly, even if he had jurisdiction to commence hearing, he exceeded it by granting relief not claimed by the parties to the suit. In either case, counsel submitted, the judgment was a nullity and void ab initio and could not create estoppel per rem judicatam between the parties and their privies. Reliance was placed on Foli v. Akesse (1934) 2 W.A.C.A. 46, P.C. and Nyame v. Yeboah [1961] G.L.R. 281, S.C. Mr. Gikunoo for the respondent, took up a stand that if it was conceded that the learned magistrate had jurisdiction to commence hearing, then even if his subsequent conduct was irregular, that jurisdiction was not taken away. The party aggrieved had his remedy by way of appeal or any other remedy he could advise himself of. The aggrieved party not having done so, the judgment is valid and binding upon him. This matter brings into focus two aspects of jurisdiction and the effect of such assumption of jurisdiction; the first is whether the magistrate had jurisdiction to entertain the claim and if he had, whether any subsequent error as to fact or law would invalidate his judgment or order, though that judgment or order had not been appealed against or set aside or quashed.
[p.139] of [1972] 1 GLR 133 The second is the effect of a judgment of the magistrate; if having set out upon an inquiry, he proceeded to exceed his jurisdiction by making orders which did not fall within that jurisdiction.
The matter may be put in another way: What is the effect of errors made within the jurisdiction and errors which go to the jurisdiction? It has always been the law that where an inferior tribunal has jurisdiction to commence an inquiry and proceedings were conducted regularly and in accordance with law, its subsequent error in arriving at a wrong conclusion will not invalidate these proceedings or his decision: vide R. v. Bolton (1841) 1 Q.B 66. The matter was put in this way in R. v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128 at p.152, P.C.: ‘To say that there is no jurisdiction to convict without evidence is same thing as saying that there is
jurisdiction if the decision is right, and none if it is wrong;—. ”If the conclusion arrived at upon the evidence is wrong then it is open to appeal. If, in addition, the error appears on the face of the record, the aggrieved party will have the alternative remedy of applying for a writ of certiorari to the High Court to put an end to its existence by quashing it. However, if the party affected does nothing either by way of appeal or certiorari and allows time to run out, he would be bound by the decision however erroneous and could not be heard in any subsequent proceedings to plead that the decision was wrong. A judge, like all human beings, is not infallible; if a decision, properly obtained at a trial, however wrong, is allowed to remain unchallenged, whether the decision be that of an inferior tribunal or superior court, that decision would be binding on persons affected by it and their privies.
But if in the course of the inquiry, the tribunal assumes more jurisdiction than is lawful, then it exceeds its jurisdiction; there has been, so to speak, “a usurpation of a jurisdiction” which he has not got; in such a case, any pronouncements made or order given on the premise of such usurpation would be void and of no effect. Against such orders, certiorari can still issue to challenge jurisdiction and the orders made thereon: the party affected may even choose to ignore those orders (though I would myself consider it extremely rash so to do) and take up the stand envisaged in R. v. Fulham, Hammersmith and Kensington Rent Tribunal; Ex parte Zerek [1951] 2 K.B. 1 at p. 10:
“For, if the tribunal wrongly assume jurisdiction, the party who apparently obtains an order from it in reality takes nothing. The whole proceedings, is in the phrase used in the old reports, coram non judice. If, for example, the applicant in this case wishes, he can sue for his 35s. rent. He will be met with the defence that by the order of the tribunal it has been reduced to 15s. He can reply that that order is bad for want of jurisdiction, and the defendant will have to justify the order on which he relies and so prove the facts which give the tribunal jurisdiction. ”It is necessary at this stage, to go back to the judgment already referred to to apply the tests discussed. The learned magistrate had held [p.140] of [1972] 1 GLR 133 quite properly that the matter before him was one concerning the ownership, possession and occupation of land. He was in duty bound on the evidence to give judgment one way or the other on the claim and the counterclaim. He, however, held that, “It is impossible therefore in the lack of a definite boundary to decide exactly which piece of land belongs to whom and hence which party has committed a trespass by entering thereon.”
In plain language, neither contestant had been able to establish his claim; the only logical and reasonable conclusion opened to the learned magistrate on his findings, was to dismiss both the claim and counterclaim. That would be the end of his jurisdiction. But he stated, “It remains in order to obviate disputes and actions of this nature in the future to draw between these two peoples as just a boundary as I am able.” He had not been called upon to “obviate disputes and actions” nor was such jurisdiction conferred upon him by law. From that moment he exceeded his jurisdiction and assumed jurisdiction which he did not possess; the proceedings from this stage were obviously coram non judice and any order or orders made were of no effect and void ab initio.
An analogous situation appeared in the case of Foli v. Akesse (1934) 2 W.A.C.A. 46, P.C. where an
arbitrator, unable to find the exact boundary line between the parties to his reference, proceeded to draw up a boundary line between them on what he considered to be fair basis. It was held at p.51:
“Their Lordships are therefore of opinion that the learned Arbitrator has misconceived his duty under the reference, in respect that by his award he has laid down a new boundary line, based on consideration of what would be a fair division of the disputed area between the parties. It follows that the award should be set aside on the ground that the Arbitrator has acted ultra fines compromissi. ”It is clear that there was a definite usurpation of jurisdiction when the magistrate constituted himself into a “land boundary commissioner.” The order flowing therefrom was, therefore, a nullity and void.
It is unfortunate that none of the parties did anything concerning the order. Nevertheless, the defendants were entitled to take up the position which they had taken that, since the order was void, it was not binding upon them. I am of the view that the order for demarcation was made without jurisdiction and is therefore null and void and that the learned judge was wrong in holding that it created an estoppel per rem judicatam. The judgment of the divisional court cannot therefore stand and is set aside. But both the pleadings and the evidence disclose that there were other issues not adjudicated upon; this case should therefore be remitted to the court below for trial de novo.
JUDGMENT OF AZU CRABBE J.S.C.
I agree, and, as we are dissenting from the learned judge of the court below, I also wish to make my own observations on the main point in this appeal. The Honuta stool (the respondents in this
[p.141] of [1972] 1 GLR 133 appeal) brought an action in the High Court, Ho, claiming against the defendants the Woame stool (the appellants herein) a declaration of title to an area on a hill top on the Ghana—Togoland frontier near Kpedze. They further claimed recovery of possession, a perpetual injunction, and £G500 (N¢1,000.00) damages for trespass. The respondents contended that the appellants were estopped from disputing their claim by virtue of the judgment of the Assistant District Commissioner of Ho, Mr. John Gutch, dated 31 July 1933. This was one of the two important issues at the trial, and it was formulated thus: “Whether there was litigation on the land in dispute between Awoames and the first plaintiff on or about 1933 and whether there was a judicial demarcation of the boundary by Mr. John Gutch and whether such demarcation is binding on the defendants and estops them from disputing the plaintiffs’ title and possession of the land in dispute” On this issue the learned trial judge said in his judgment as follows: “Counsel for the defendants submitted that as it was not a suit for demarcation of boundaries and as there was nothing in the record to show the district commissioner had the powers of a lands boundary settlement commissioner there was a total lack of jurisdiction which rendered the judgment nugatory. It may be — I express no opinion on this point — that the assistant district commissioner was wrong in demarcating a boundary in this case but that would not amount to a total lack of jurisdiction. There is no doubt that he had jurisdiction to hear the case. The remedy of a dissatisfied party lay in an appeal.
I find that the Gutch judgment was a valid one and that it created an estoppel.”
The other issue, which was raised by the appellants, was decided in favour of the respondents, but nothing turns on this in the present appeal. In this appeal the sole issue is the validity of the Gutch judgment, it being contended by the appellants that “My. Gutch had no jurisdiction to demarcate a boundary instead of trying simply a suit in relation to ownership, possession or occupation of land” The jurisdiction of any court is the power to hear and determine the subject-matter in controversy
between parties to a suit. As the late Sir Henley Coussey said in Timitimi v. Amabebe (1953) 14
W.A.C.A 374 at p. 376; “ A court is said to be of competent jurisdiction with regard to a suit or other
proceeding when it has power to hear or determine it or exercise any judicial power therein.” The cases draw a distinction between an order or judgment which a court is not competent to make, and an order which, even if erroneous in law or fact, is within the court’s competency: where there is no jurisdiction the proceedings are void: but where a court of competent jurisdiction makes an erroneous order, it is appealable. [p.142] of [1972] 1 GLR 133 An inferior court, such as the district commissioner’s court in the instant case, can only have such jurisdiction as is specifically conferred on it by the Ordinance or the Act constituting the court. Where the decision of an inferior court is pleaded as conclusive against one of the parties to a dispute, it must be shown by the person who relies on that decision that the court giving it had jurisdiction: R. v. Judge Pugh; Ex parte Graham [1951] 2 All E.R. 307, per Lord Goddard C.J. at p. 308. If that court wrongly assumes jurisdiction, the whole proceeding becomes a nullity: R. v. Fulham, Hammersmith and Kensington Rent Tribunal, Ex parte Zerek [1951] 1 All E.R. 482 at p. 488, D.C. The jurisdiction of the assistant district commissioner, who heard the case between the parties, was conferred by section 79 of the Native Administration (Southern Section) Ordinance, 1932. Section 79 provides that: “The District Commissioner’s Court shall have and exercise jurisdiction to hear and determine any cause or matter relating to the ownership, possession or occupation of land in the Southern Section where for any reason it is uncertain (a) if the land is situated within the jurisdiction of any Native Tribunal established under section forty-two of this Ordinance. (b) in the jurisdiction of which Native Tribunal the land is situated. ”Section 80 (1) further provides that: — “(1) Any party who feels aggrieved by any decision of the District Commissioner’s Court relating to land and given in the original jurisdiction of the Court under the provisions of the last preceding section may appeal to the Provincial Commissioner’s Court . . .”The dispute before the assistant district commissioner, Mr. Gutch, in 1933 was between the Woames and the Honutas, and in paragraph (1) of Mr. Gutch’s judgment he stated the facts, which in his view, gave him the power to determine the dispute. He said: “This is a claim for damages for trespass brought by the Chief of Woame in Togoland under French Mandate against the Divisional Chief of Honuta in Togoland under British Mandate. The Divisional Chief of Honuta has set up a counterclaim against the Chief of Woame, also for trespass. It is clear therefore the title to the land in question is in dispute between the two parties. The Chiefs appear as representatives of their people farming on this land and the boundary in dispute is that between the Woames and the Honutas. It is therefore in my opinion doubtful whether this land lies within the jurisdiction of any Tribunal established under the Native Administration (Southern Section) Ordinance, No. 1 of 1932, and the case therefore falls within the jurisdiction of the District Commissioner’s Court under Section 79 of that Ordinance.”Mr. Gutch then proceeded to examine the evidence and concluded as follows:
[p.143] of [1972] 1 GLR 133 “It is impossible therefore in the lack of a definite boundary to decide exactly which piece of land belongs to whom and hence which party has committed a trespass by entering thereon. The Woames have encroached from the East, the Honutas from the West. It remains in order to obviate disputes and actions of this nature in the future to draw between these two peoples as just a boundary as I am able…. As regards more recent cultivation, it has been impossible as I have already stated, to ascertain the ownership even of individual cocoa seedling, but the fact that it was along the boundary that I am about to describe that disputes arose and trespass was alleged by both parties to have been committed leads me to think that this division of land is equitable one and allots to each party so much land as he can fairly claim a title to by use and occupation.
I have caused a plan to be made of the land of this boundary. This plan will be attached to this judgment and marked—exhibit A.
The boundary between the land of the Woames and of the Honutas shall be as follows . . .”
I understand the learned trial judge to mean by his observations on the demarcation of the boundary, that Mr. Gutch had jurisdiction to hear the case before him, and that if in the course of the hearing he did something wrong that would be an error within jurisdiction and would not invalidate his judgment. The argument of Mr. Gikunoo, counsel for the respondents in this appeal, supports this view. There is no doubt that this view is supported by certain dicta in some of the cases. In R. v. Bolton (1841) 1 Q.B. 66, Lord Denman C.J. said at p. 74: “The question of jurisdiction does not depend on the truth or falsehood of the charge, but upon its nature; it is determinable on the commencement, not at the conclusion, of the inquiry. ”In his recent speech in R. v. Governor of Brixton Prison; Ex parte Kwesi Armah [1968] A.C. 192, H.L. in which the House of Lords granted habeas corpus on the ground that the evidence produced by the
Government of Ghana did not satisfy the test of raising a “strong or probable presumption” of guilt within the meaning of the English Fugitive Offenders Act, 1881 (44 & 45 Vict., c. 69), Lord Reid said at p. 234: “If a magistrate or any other tribunal has jurisdiction to enter on the inquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision. If he has jurisdiction to go right he has jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction.”
Mr. Kom, counsel for the defendants, contends that even if Mr. Gutch had jurisdiction to hear the claim before him he nevertheless stepped outside the area of his jurisdiction in the course of the hearing, and that his decision on a matter outside the area prescribed by section 79 was a nullity. The short point which Mr. Kom sought to urge on this court is that Mr. Gutch exceeded his jurisdiction. As Lord Pearce said in his [p.144] of [1972] 1 GLR 133 speech in the recent case of Anisminic Ltd. v. Foreign Compensation mission [1969] 2 A.C. 147 at p. 194, H.L.: “It would lead to an absurd situation if a tribunal, having been given a circumscribed area of inquiry, carved out from the general jurisdiction of the courts, were entitled of its own motion to extend that area by misconstruing the limits of its mandate to inquire and decide as set out in the Act of Parliament. ”A judge of an inferior tribunal is said to have exceeded his jurisdiction when he assumes to do something which cannot in any way be justified by the relevant statutory provisions from which he derives his power to adjudicate. In Baldwin & Francis Ltd. v. Patents Appeal Tribunal [1959] A.C. 663, H.L., Lord Denning, in the course of his speech, cited a number of cases in which inferior courts or tribunals had been held to have exceeded their jurisdiction, and pointed out the distinction between “excess of jurisdiction” and “want of jurisdiction.” He said at p. 695: “In some of these cases it has been said that the tribunal, in falling into an error of this particular kind, has exceeded its jurisdiction. No tribunal, it is said, has any jurisdiction to be influenced by extraneous considerations or to disregard vital matters. This is good sense and enables the court of Queen’s Bench to receive evidence to prove the error. But an excess of jurisdiction in this sense is very different form want of jurisdiction altogether which is, of course, ‘determinable at the commencement, not at the conclusion of the inquiry’ (see Reg. v. Bolton).Whereas an excess of jurisdiction is determinable in the course of or at the end of the inquiry. But allowing that a tribunal which falls into an error of this particular kind does exceed its jurisdiction, as I am prepared to do, nevertheless I am quite clear that at the same time it falls into an error of law too: for the simple reason that it has ‘not determined according to law’.” And in Spencer-Bower and Turner, The Doctrine of Res Judicata (2nd ed.), p. 92, section 114, there is this simple explanation of “excess of jurisdiction”: “A tribunal may exceed its jurisdiction either by embarking upon an inquiry outside its province, or, while confining its inquiry within the proper limits, by making an order in excess of its powers. In either case the result will be to nullify the decision as a res judicata; . . .”The cases have also drawn a distinction between excess of jurisdiction or usurpation of jurisdiction, and mere error or wrong exercise of a jurisdiction. In R. v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128, P.C. a firm had been convicted before a magistrate for selling liquor contrary to the local Liquor Act. The only evidence of the fact of sale was that of an agent provocateur of the police, and it was contended that “want of evidence on which to convict is the same as want of jurisdiction to take evidence at all.” In rejecting this contention Lord Sumner said at pp. 151 — 152: [p.145] of [1972] 1 GLR 133 “This, clearly, is erroneous. A justice who convicts without evidence is doing something that he ought not to do, but he is doing it as a judge, and if this jurisdiction to entertain the charge is not open to impeachment, his subsequent error, however grave, is a wrong exercise of a jurisdiction which he has, and not a usurpation of a jurisdiction which he has not — To say that there is no jurisdiction to convict without evidence is the same thing as saying that there is jurisdiction if the decision is right, and none if it is wrong; or that jurisdiction at the outset of a case continues so long as the decision stands, but that, if it is set aside, the real conclusion is that there never was any jurisdiction at all. ”Then speaking of the supervisory jurisdiction of the superior courts in the same case Lord summer said at p. 156: “Its jurisdiction is to see that the inferior Court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise.” In R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 K.B. 338, C.A. Denning L.J. (as he then was) made observation to the same effect. He said at p. 346:
“No one has ever doubted that the Court of King’s Bench can intervene to prevent a statutory tribunal from exceeding the jurisdiction which Parliament has conferred on it; but it is quite another thing to say that the King’s Bench can intervene when a tribunal makes a mistake of law. A tribunal may often decide a point of law wrongly whilst keeping well within its jurisdiction.”
In Seereelall Jhuggroo v. Central Arbitration and Control Board [1953] A.C 151, P.C., the question was not whether the board was wrong in the exercise of its discretion, nor even whether it misconstrued the words of the relevant Ordinance, but whether it took into consideration matters outside the ambit of its jurisdiction and beyond the matters which it was entitled to consider. The arbitration board had a discretion to decide the amount of payment to planters of sugarcane in Mauritius; but it is provided by the Ordinance establishing the board that when determining the payment due to planters in return for their canes, the board “shall be guided by the principle that the average amount of sugar which planters might expect to receive for their canes would be not less than two-thirds of the amount of sugar which a ton of such canes delivered at the factory may normally be expected to yield.” The Privy Council affirmed a decision of the Supreme Court of Mauritius that the board had not exceeded its jurisdiction, and Lord Porter, who delivered the opinion, said at pp. 162—163: [p.146] of [1972] 1 GLR 133 “If, then, the board, in coming to its determination, had neglected or rejected that consideration [i.e. the guidance by the principle], it might well have been held to have exceeded its jurisdiction in taking it to be unfettered, whereas it was subject to a limitation of outlook but not confined to a particular proportion.
Whether they used a correct discretion or not is, of course, irrelevant in a case where certiorari is claimed. As long as they take into consideration only matters within their jurisdiction, the resultant decision, right or wrong, is for them and for them only. ”In R. v. Fulham Hammersmith and Kensington Rent Tribunal; Ex parte Hierowski [1953] 2 Q.B. 147, the tribunal, in reducing rent, took into consideration afresh the reasonableness of the amount charged, which was an extraneous consideration, as they should only have had regard to the change of circumstances. It was held that their order was a nullity, though it was an order of the kind which it was authorised to make in a proper case. See also Board of Trustees of the Maradana Mosque v. Badiuddin Mahmud [1967] 1 A.C. 13, P.C. In the Anisminic case (supra) Lord Reid states the circumstances in which a statutory tribunal which has jurisdiction to embark upon an inquiry may lose the power to give a binding decision. He said at p. 171: “It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word ‘jurisdiction’ has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly.” Lord Reid continued his speech at the same page as follows: “I understand that some confusion has been caused by my having said in Reg. v. Governor of Brixton Prison; Ex parte Armah [1968] A.C. 192, 234 that if a tribunal has jurisdiction to go right it has jurisdiction to go wrong. So it has, if one uses ‘jurisdiction’ in the [p.147] of [1972] 1 GLR 133 narrow original sense. If it is entitled to enter on the inquiry and does not do any of those things which I have mentioned in the course of the proceedings, then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law. ”Lord Pearce again said in the case at p. 195: “Lack of jurisdiction may arise in various ways. There may be absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity.” In my view, the question whether there is excess of jurisdiction by an inferior court or merely an error within its jurisdiction is determined only by construing the Ordinance or Act conferring the jurisdiction.
In this case there is no question that the condition precedent for the exercise of the assistant district
commissioner’s jurisdiction was satisfied. The crucial question raised is whether he put himself outside the area of his jurisdiction in the course of hearing the case before him. Did he put himself out of bounds? Or was he acting within his jurisdiction, but exercised that jurisdiction wrongly?
Section 79 gave the assistant district commissioner power to hear and determine any cause or matter
relating “to the ownership, possession or occupation of land.” The claim and counterclaim before him were for damages for trespass, and at the conclusion of the evidence he expressed himself as not being satisfied that either party had proved their case. The only order he could have made in those
circumstances was one dismissing both the claim and the counterclaim. Had he done this, the only remedy for any aggrieved party was an appeal under section 80. But he proceeded to make a gratuitous order demarcating what he conceived the just boundary between the parties. Section 79 does not give any specific authority to demarcate boundaries, it only gives power to determine a dispute about ownership, possession and occupation of land. There seems to be a dearth of authority on the point that arises in the present case, and the only case, which in my opinion, is directly in point is Ohene of Assachere v. Ohene of Dadiase (1941) 7 W.A.C.A. 86. In that case the plaintiff sued the defendant in the Asantehene Native Court “A” claiming a declaration of title to a certain piece of land in Assachere. At the conclusion of the evidence, the native court, in accordance with its usual practice, sent certain persons to view the disputed land with the parties and to submit a report. After the inspection, a report, which both parties accepted
[p.148] of [1972] 1 GLR 133 as correct, was submitted. The Asantehene’s Native Court “A” then gave judgment (which is set out at pp. 86-87 of Assachere v. Dadiase (supra)) in which it said:
“There are certain points in favour of either side. In view of this fact, the Court feels that the only way by which justice and equity could be met in the case is to divide the land between the two stools. The Court therefore sets the following boundaries between them and orders that each party should bear his own costs. ”The boundaries so demarcated divided the disputed land into two parts, the larger part going to the defendant. An appeal by the plaintiff to the Chief Commissioner’s Court was dismissed, and the plaintiff appealed again to the West African Court of Appeal. The plaintiff’s appeal was again dismissed by a unanimous decision of that court, and Graham Paul C.J. (Sierra Leone), who read the leading judgment, said at p. 89 that there was not sufficient ground to justify the court in interfering with such “a common sense judgment.” But the learned Chief Justice conceded at p. 89 that: “It is more than doubtful whether the Native Court was justified in giving the Assachere people as much as they did.” Nevertheless, the learned Chief Justice said that it was for him “a matter for congratulation that a final decision has at last been given in this lengthy litigation, and the appellant has in my opinion failed to show any reason why this Court should give him another opportunity to re-open it.” Kingdon C.J. (Nigeria) thought that the fixing of the boundary between the parties was arbitrary, but that the plaintiff, having failed to prove his right to a declaration, should be content with the land apportioned to him. These are Kingdon C.J.’s own words at pp. 89-90: “It seems to me clear from the passage in the judgment of the Asantehene’s Court ‘A’ which has been quoted by my learned brother that that Court found that the plaintiff had failed to prove his case. That being so the Court should, in my opinion, have dismissed the plaintiff’s claim. Instead of doing that the Court divided the land between the parties fixing an arbitrary boundary. In the result the plaintiff got what amounts to a declaration of title inter partes to part of the land, a declaration to which he was not entitled since he had tried but failed to prove his right to it, whilst the defendant got what amounted to a declaration of title inter partes to the other part of the land, a declaration for which he had not asked, and to which he also had not proved his right. But since the defendant has neither appealed nor asked this Court to exercise in his favour the powers conferred upon it by Rule 31 of its rules, there is no need to alter the judgment of the Asantehene’s Court ‘A’ in his favour. And since to substitute for the judgment given the judgment which I have indicated above should, in my view, have been given would result in the plaintiff being worse off than he is, and have the further disadvantage of leaving a long standing dispute still unsettled, I agree that the judgment of the Asantehene’s Court ‘A’, confirmed by the Chief Commissioner of Ashanti, should be upheld and the appeal dismissed. ”[p.149] of [1972] 1 GLR 133 Petrides C.J. (Gold Coast) also said at p. 90: I think it is quite clear, looking at the evidence as a whole and listening to the arguments of appellant’s councel, that the evidence was not such as would have justified Asantehene’s Native Court ‘A’ in holding that appellant has discharged the onus of proof of ownership entitling him to the declaration sought. Native Court ‘A’ apparently appreciated that difficulty and refrained from granting the appellant declaration of title to the whole land. They however granted him a declaration as to part. In my opinion they were wrong in doing so but as there has been no cross-appeal that part of the judgment need not be varied by this Court. It must be borne in mind that Court ‘A’ is a Native Court and its members have not the same power of expressing themselves accurately as a trained lawyer.
It seems to me that the Court meant to convey that the plaintiff had not made out a case for a declaration of title to the land claimed but that he had established some good points and that justice and equity would be satisfied by granting him a declaration of title to that part awarded to him.”
It seems to me that the West African Court of Appeal thought the judgment of the Asantehene’s Native Court “A” ought to be sustained for the following reasons: (1) it was a common sense judgment. (2) that under the judgment the plaintiff undeservedly got a declaration of title to a piece of land, and he was not entitled to complain, as the approach of the native court to the problem was in accord with “justice and equity. (3) that the declaration of the boundaries finally settled a protracted litigation. With the greatest respect to the distinguished judges of the West African Court of Appeal, I do not think that the demarcation of boundaries by the Asantehene’s Native Court “A” was warranted either by the Native Courts (Ashanti) Ordinance, Cap.80 (M’Carthy ed.) or by the regulations made under it. The jurisdiction of the Asantehene’s Native Court “A” is found in the Schedule to the Native Courts (Ashanti) Ordinance, Cap. 99 (1951 Rev.), and is stated as follows:
“Jurisdiction in all disputes relating to the ownership, possession or occupation of land in the Confederacy, (a) arising between two or more Head Chiefs or Chiefs belonging to different divisions or between a Head Chief and a person subject to the jurisdiction of such Head Chief by virtue of the Native Authority (Ashanti) Ordinance, or (b) in which for any reason no other Native Court has the requisite jurisdiction, or (c) which are transferred to the Court by the Chief Commissioner under section 23 (1) (e). ”[p.150] of [1972] 1 GLR 133 Under this Ordinance a native court had jurisdiction to administer (a) native law and custom prevailing in the area of its jurisdiction, so far as it was not repugnant to natural justice or morality or inconsistent with any provisions of any Ordinance; (b) the provisions of any Ordinances which the court was authorised to administer, and also the provisions of all rules made under the Native Authority (Ashanti) Ordinance, and in force in the area of the jurisdiction of the court. The Asantehene’s Native Court “A” had no jurisdiction to administer the law of equity, neither was it entitled to give a “common sense judgment.” A claim before that court must succeed or fail according to the prevailing native law and custom, and not according to common sense.
It does not appear that the West African Court of Appeal was referred to the Privy Council’s decision in the earlier case of Foli v. Akesse (supra). In that case the plaintiff, the Omanhene of Adansi in Ashanti, on behalf of his stool, claimed damages against the defendants, both subordinate chiefs under the Omanhene of Akim-Abuakwa, jointly and severally for certain alleged acts of trespass, and for the declaration as to the boundary between Adansi and Akim Abuakwa. The learned circuit judge, who heard the case, said in his judgment that the evidence was not sufficient, nor did he find it necessary to make any declaration as to the extent of the land owned by the plaintiff, apart from the land in dispute. The defendants appealed, and by consent the judgment of the learned circuit judge was set aside, and an order was made for a survey of the whole area in dispute. On the completion of the survey the appellate court, acting under rules of court, referred to an arbitrator “the matters in difference between the parties.” The plaintiff filed an application to the appellate court to set aside the award on a number of grounds, but this was refused.
The plaintiff appealed from this refusal to the Privy Council. In the course of his speech Lord Thankerton, who delivered the opinion of the Privy Council, said as follows at p. 50:
“In the second place, the appellant maintained that it appeared on the face of the award that the Arbitrator had laid down a new boundary line, not as matter of existing title, but as a fair demarcation of boundary as between the parties. If this criticism can be justified, there can be no doubt that the award was beyond the scope of the reference, for the duty of the Arbitrator was to ascertain a boundary existing as matter of title, and not to lay down a new boundary, however fair that might appear to be in light of the circumstances disclosed in the evidence. It is therefore necessary to consider carefully the award, in which the learned Arbitrator has fully set out his views on the evidence and his reasons for his award. ”Then, after considering the award, Lord Thankerton said at p. 51: “Their Lordships are therefore of opinion that the learned Arbitrator has misconceived his duty under the reference, in respect that by his award he has laid down a new boundary line, based on consideration of what would be a fair division of the disputed area between the [p.151] of [1972] 1 GLR 133 parties. It follows that the award should be set aside on the ground that the Arbitrator has acted ultra fines compromissi. ”See also Nyame v. Yeboah [1961] G.L.R. 281, S.C.
In my view, the case of Ohene of Assachere v. Ohene of Dadiase (supra) was, with all due respect,
decided per incuriam, for I am satisfied that had Asantehene’s Native Court “A” under the Native Courts (Ashanti) Ordinance, Cap. 80, and the regulations made thereunder, as well as the case of Foli v. Akesse (supra) which was binding upon it had been referred to it, its decision in that case (Ohene of Assachere v. Ohene of Dadiase) would have been different.
In cases of trespass to land, it may be necessary to define the area and boundaries of the land in dispute in the judgment, though this is by no means essential: see Tsibu v. Kyei (1922) F.C. ‘22, 13 and Sogo v. Yaw Krampa (1922) F.C. ‘22, 22. Where the evidence does not indicate what the existing boundaries are, it would be wrong for the trial court on its own motion to demarcate the boundary between the parties in order to prevent future litigation or to be fair in all the circumstances.
I wish to cite one last case .In the recent case of Kpomago v. Gabienu, Court of Appeal, 16 February
1970, unreported, the plaintiff instituted an action in the Keta Local Court Division 2, and he relied on a previous judgment by another native court (the Wheta-Afife-Klikor Native Court B) as estopping the defendants per rem judicatam. The claim in the previous case was for damages for trespass and an order of injunction, but the native court found that that there was no trespass and gave judgment for the defendant in that case. The native court then proceeded to make what this court described as a “gratuitous order” as follows: “Both parties to remain in possession of the land occupied by them prior to the institution of this action. The former boundaries to abide with their portions already occupied.” In the Keta Local Court the plaintiff sought an order “to fix permanent boundary pillars between the land already occupied by both the plaintiff and defendants.” The Keta Local Court made the order, but, on appeal to the Land Court, it was held that there was nothing in the previous judgment to show what features constituted the existing boundary between the parties along which pillars could be erected. On a further appeal to this court it was held: “The Wheta-Afife-Klikor Native Court B, in making the order in exhibit A clearly exceeded its jurisdiction, such an order therefore is void ab initio and any judgment based on exhibit A is a nullity.” In this case the assistant district commissioner undoubtedly had jurisdiction to determine the case of trespass but, in my view, he lost or exceeded that jurisdiction when in the course of the hearing he purported to do an act which was beyond the area and range of his restricted competence. He must have had in mind the provisions of section 3 (1) of the Ascertainment of Boundaries Ordinance, Cap. 89 (1920 Rev.) which read as follows: [p.152] of [1972] 1 GLR 133 “Whenever a dispute shall arise between the owners of adjoining lands or any persons holding under either of them respecting the boundary of such lands, or where such boundary is in doubt or where such boundary has not been fixed, the owner of either of such lands may cause a writ of summons to be issued against the owner of the other of such lands for the determination of such boundary; and if the defendant shall not on the return day show good cause to the defendant being owners adjoining lands, and of the dispute or of the boundary being in doubt or that no boundary has ever been fixed, as the case may be, and, if the defendant shall not appear, of the service of the writ of summons, the Court may order that such boundary shall be determined by the Court and upon such order being made the Court shall proceed to determine such boundary.” Section 2 of this Ordinance made it clear that “Court” meant a Divisional Court, and consequently the assistant district commissioner had no authority to act under the Ordinance.
In my judgment the purported demarcation of the boundary between the Woames and the Honutas by the assistant district commissioner was without jurisdiction and was automatically null and void. And if I may quote the well-known dictum of Lord Denning in MacFoy v. United Africa Co. Ltd. [1962] A.C. 152 at p. 160, P.C.: “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. ”So it is that a void judgment of Mr. Gutch cannot be the basis of a plea of res judicata.
It follows, in my view, that the learned trial judge, with all due respect, erred when he held that the Gutch judgment was valid, and that it created an estoppel against the defendants.
For the above reasons, I think that the appeal should be allowed with costs.
JUDGMENT OF JIAGGE J.A.
I also agree.
DECISION
Appeal allowed. Case remitted to court below for trial de novo.
K.T.
