KRAMO vs. AFRIYIE [1973] 1 GLR 95

CASES REFERRED TO

(1) Amponsah v. Minister of Defence [1960] G.L.R. 140, C.A.

(2) National Omnibus Services Authority v. Owuo, Court of Appeal, 20 August 1969, unreported;

digested in (1969) C.C. 158.

(3) The Ydun [1899] P. 236; 68 L.J.P. 101; 81 L.T. 10; 15 T.L.R. 361, C.A.

(4) State Gold Mining Corporation v. Sissala [1971] 1 G.L.R. 359, C.A.

(5) Nkawie Stool v. Kwadwo (1956) 1 W.A.L.R. 241, W.A.C.A.

(6) Bakuma v. Ekor [1972] 1 G.L.R. 133, C.A.

(7) Obeng v. Ampofo, Supreme Court, Cyclostyled Judgments, January-June 1958, at p. 143, unreported.

NATURE OF PROCEEDINGS

APPEAL against the ruling of a trial magistrate dismissing the plaintiff’s action in a land suit on the ground that the disputed land lay outside his jurisdiction. The facts are fully set out in the judgment.

JUDGMENT OF OSEI-HWERE J.

This is an appeal against the ruling of the District Magistrate Grade II, Nkoranza, wherein the plaintiff’s action was dismissed for ouster of jurisdiction. The plaintiff sued the defendant at the District Court Grade II, Nkoranza, claiming:

[p.98] of [1973] 1 GLR 95 (a) Declaration of title to and recovery of possession of a piece of land at a place called Bepotintinso on Techiman stool land;

(b) Perpetual injunction; and (c) Damages for trespass.

After the writ of summons had been served on the defendant she filed a motion challenging the jurisdiction of the court upon the ground, as disclosed by her supporting affidavit, that the land in dispute at Bepotintinso is “situated at Afrancho on Offinso stool land and not . . . on Techiman stool land as falsely alleged by plaintiff and that the District Court Grade II, Techiman, had therefore, no jurisdiction over the matter. The defendant therefore claimed, that the District Court II Offinso, had jurisdiction to try the case. When the motion came on for hearing the trial magistrate ordered that the disputed land be surveyed and a plan drawn out indicating in which traditional area the Bepotintinso land is situate. After the trial magistrate had heard the surveyor’s representative who undertook the survey and tendered the plan, he ruled that the area in dispute lies in Ashanti Region and outside the jurisdiction of the District Court Grade II, Nkoranza, and that his court had therefore no jurisdiction to try the suit. He accordingly, dismissed the action with ¢140.30 assessed costs against the plaintiff.

The plaintiff filed three grounds of appeal in the following terms:

“(i) The magistrate’s ruling was wrong since it was the result of a confusion between regional boundaries and judicial or juridical boundaries: the two are not the same.

(ii) The magistrate erred in basing his decision on a plan which did not show, describe or demarcate the area or district within which the Techiman District Court should operate.

(iii) The magistrate erred in thinking that the area of jurisdiction of his court was determined by regional boundaries as a previous magistrate intended to adopt knowing that the judicial boundary or judicial district or division is not the same as regional boundaries.”

Two additional grounds of appeal were filed as follows:

“(1) That the ruling made by the magistrate was wrong in law.

(2) That the case must be sent back to the Techiman District Court Grade II for the new magistrate to hear it on its merit.”

The first objection raised by the defendants counsel to the plaintiff’s appeal is that the plaintiff has no right of audience before this court. According to him the trial magistrate’s ruling dismissing the suit for want of jurisdiction is an interlocutory decision and the plaintiff could have come to this court only by the special leave of the court below or of this court. If his objection is upheld then that will of course,

[p.99] of [1973] 1 GLR 95

afford a complete answer why the appeal should be dismissed. It is well settled that no litigant has an inherent right of appeal and that in all causes or matters an appeal lies only if given by statute. An appellate court, conversely, has no jurisdiction to entertain an appeal generally from an order or decision given by a court below unless a statute confers that right: see Amponsah v. Minister of Defence [1960] G.L.R. 140, C.A. The ruling, which is the subject of this appeal, was itself delivered on 27 August 1971 and the plaintiff filed his notice of appeal on 21 September 1971. On 22 September 1971, the Courts Act, 1971 (Act 372), was passed.

It is clear, therefore, that when the plaintiff filed his notice of appeal the relevant enactment in force was the Courts Decree, 1966 (N.L.C.D. 84). Paragraph 61 of the Courts Decree, 1966, which remained unaffected by the subsequent amendments to the Courts Decree, gave the right of appeal in respect of any decision of any district court to the High Court without laying down the procedure when the decision is only interlocutory. It cannot be doubted that under the Courts Decree, 1966, no special leave was required to appeal from an interlocutory decision of the district court, be it Grade I or Grade II. However, by section 19 (4) of the subsequent Courts Act, 1971 (Act 372), it has been provided that a person aggrieved by any interlocutory decision given by a district court may appeal against it to the High Court with the leave of the district court or of the High Court.

It has been laid down in National Omnibus Services Authority v. Owuo, Court of Appeal, 20 August 1969, unreported; digested in (1969) C.C. 158 that a procedural enactment is retrospective and, as it was explained by A.L. Smith L.J. in The Ydun [1899] P. 236 at p. 245 C.A. that “where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act.” The argument may, therefore, sound attractive that as at the time the appeal came to be heard before this court section 19 (4) of Act 372 had been passed, which undoubtedly is a procedural enactment, the plaintiff ought to have complied with the procedure laid down if the decision he is appealing against is interlocutory. In my opinion the short answer to this argument is provided by the Interpretation Act, 1960 (C.A. 4), s. 8 (1) (b), which is to the effect that the repeal or revocation of an enactment shall not affect the previous operation of the enactment or anything duly done or suffered thereunder.

The pertinent ruling of the trial magistrate is as follows: “The District Court Grade II of Nkoranza has no jurisdiction over cases arising out of its jurisdiction. Plaintiff’s action is dismissed with costs assessed at ¢140.30 against him.” What is the effect of this ruling? Counsel for the plaintiff contended that it is a final decision whilst the defendant’s counsel held that it is an interlocutory decision as it cannot

[p.100] of [1973] 1 GLR 95

operate as res judicata against the plaintiff if he chose to sue in the proper court. In State Gold Mining Corporation v. Sissala [1971] 1 G.L.R. 359, C.A., the Court of Appeal had occasion to consider the various tests in deciding whether a decision is final or interlocutory and it accepted the test as laid down in Nkawie Stool v. Kwadwo (1956) 1 W.A.L.R. 241, W.A.C.A. It was laid down in that case that an order which dismisses a plaintiff’s action but without prejudice to his right to bring another action does not finally dispose of the rights of the parties and is therefore interlocutory and not a final order. The decision in the Nkawie case is easily distinguishable from this decision on appeal for in the Nkawie case even though the plaintiff’s action was dismissed, he was given the liberty to bring a fresh action. In the instant appeal the plaintiff’s action was summarily dismissed. The words “action . . . dismissed,” as employed in the trial magistrate’s ruling (without probably intending their import) are no ordinary words but an expression of art. To “dismiss” an action without liberty to apply as opposed to a mere striking off, will disentitle the plaintiff to take a fresh action against the defendant on the same subject-matter as the dismissal will operate as res judicata against the plaintiff. It is for this reason that I consider the ruling to be final and that the plaintiff can appeal without special leave.

The points raised by the plaintiff’s counsel on his grounds of appeal cannot, to my mind, be seriously countered. The trial magistrate, in ordering the survey and dismissing the suit as he did on the score that the disputed land lay outside the jurisdiction of his court, clearly exceeded his jurisdiction. Not only that; he also ran a pencil through the provisions of paragraph 54 (2) of the Courts Decree, 1966 and usurped the powers of the High Court as conferred by that sub-paragraph. It has been explained in Bakuma v. Ekor [1972] 1 G.L.R. 133 at p. 144, C.A. that “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.” It is clear from the authorities that where there has been an abuse or usurpation of jurisdiction by an inferior court any pronouncement made or order given on the premise of such abuse or usurpation would be void and of no effect and when brought to the notice of a superior court, either by way of certiorari or appeal, the court will not permit it to remain: see Obeng v. Ampofo, Supreme Court, Cyclostyled Judgments, January-June, 1958, at p. 143, unreported.

In a bold attempt to salvage the wreckage caused by the trial magistrate’s ruling counsel for the defendant relied on the Magisterial Districts (Grade II) Instrument, 1969 (L.I. 637), which set up the magisterial districts of the Grade II courts. This legislative instrument did not pretend to define the physical limits of the jurisdiction of each

[p.101] of [1973] 1 GLR 95

Grade II court. All it did was to indicate that each region as mentioned in the first column of the schedule shall constitute a single magisterial district and that the Grade II magistrates were to sit at the particular places mentioned. It is true to say that by Order 9, r. 1 of Schedule II to the Courts Ordinance, Cap. 4 (1951 Rev.), provides that “All suits relating to land . . . shall be commenced and determined in the Judicial Division in which the land or any part thereof is situated . . .” It is also true to say that as L.I. 637 constituted the whole of Ashanti into a single magisterial district, if it is found that the disputed land lies within Ashanti then the action relating thereto must properly have been begun within the Ashanti magisterial district. What was overlooked, however, by the trial magistrate was that the wrong choice of venue cannot impeach his assumption of jurisdiction to try the case except where an objection has been properly raised and that when it is so raised he has not the competence to decide on whether or not he has jurisdiction. In the result no meretricious flirtation with L.I. 637 can save the magistrate’s ruling which is incurably bad.

This appeal typifies the classic example where litigants in humble circumstances, because they must protect their rights, will wake up to realize the expensiveness of a law suit. This situation was, unfortunately, not of the making of the parties in this suit but of the trial magistrate. The land itself is said to be worth about ¢60.00 and because of the point of jurisdiction which the defendant raised, both parties had to pay ¢130.00 each towards the needless preparation of a plan. When the objection to jurisdiction was upheld the plaintiff was saddled with further costs of ¢140.30. There must be an end to this escalation of costs. I accordingly allow the appeal and I set aside the decision of the court below as well as the costs awarded. It will not conduce to justice to make the defendant also pay any costs for the default of the trial magistrate. I therefore, make no order as to costs in this court.

As I have observed before, the trial magistrate ought to have made a report on the objection to jurisdiction to this court in the first instance. It is clear from the affidavit filed that the land in dispute is fourteen miles from Techiman where the trial magistrate sits and 46 miles from the Offinso District Court in Ashanti. It will be a matter of convenience for both parties that the matter should be tried at the Techiman District Court Grade II where the writ of summons was issued. I accordingly order that the District Court Grade II, Techiman, should hear and determine this suit.

DECISION

Appeal allowed.

S. E. K.