COURT OF APPEAL
DATE: 3 JULY 1967
BEFORE: OLLENNU, AZU CRABBE AMISSAH JJ.A.
NATURE OF PROCEEDINGS
APPEAL against a ruling of the Ho High Court granting an order of certiorari to quash a judgment of the Anlo Local Court. The facts are fully stated in the judgment of the court.
COUNSEL
de Graft-Johnson for the appellants.
Koi Larbi for the respondents.
JUDGMENT OF OLLENNU J.A.
Ollennu J.A. delivered the judgment of the court. This is an appeal against an order of certiorari made by the High Court, Ho, quashing an order of the Anlo Local Court which committed the respondents to prison for default in compliance with an order for payment of costs by instalment.
A brief history of the matter is necessary for a clear appreciation of the issues raised. The respondents, as plaintiffs, in or about 1958, instituted action against the appellants, as defendants, in the erstwhile Wego-Torgo Native Court “B” for declaration of title to and recovery of possession of a piece of land situate at a place called Afiadenyigba in the Keta District. The value of the land is stated to be about £G2,500. The Wego-Torgo Native Court “B” was established under the Native Courts (Southern Togoland) Ordinance, Cap. 106 (1951 Rev.), and had unlimited jurisdiction in land suits. Judgment was entered for the plaintiffs in the Wego-Torgo Native Court “B” on 19 March 1959, but the same was set aside on 8 May 1962, by the High Court, Ho, on the ground of irregularity in the constitution of the trial native court. The High Court thereupon remitted the case “to the appropriate local court now having jurisdiction in the area to be heard de novo” and made the following order as to costs:
“The costs in the native court already incurred and
[p.470] of [1967] GLR 468
those to be incurred at the new hearing will be in the discretion of that court in giving its judgment at the new hearing.”
The case eventually came before the Anlo Local Court on 18 December 1962. On that date, thedefendants objected to the jurisdiction of the local court to entertain the suit, the value of the land subject-matter of the suit being above £G200. The local court upheld the objection to its jurisdiction, dismissed the suit and made the following order as to costs: “The plaintiffs to pay the costs of the defendants in the sum of £G6 6s. 0d. in the present case before this court. The costs in the native courts to be taxed.” The costs were taxed at £G118 6s. 6d.
Armed with this order for costs the defendants applied to the local court and had summons served upon the plaintiffs to appear and show cause why they should not be committed to prison for non-payment of the taxed costs; the plaintiff’s failed to appear, they were then arrested, on warrant and brought before thenlocal court, and the matter proceeded as follows:a
“The plaintiffs at first denied that any costs as such had been ordered and assessed against them. However, on resumption of hearing today the plaintiffs agreed to the claim as genuine. They prayed for instalment payments of £G2 per month and assert that they have taken out a fresh claim against the defendants beforenthe High Court, Ho. The defendants would not accept that the debt be repaid by instalments. They substantiated their case that the plaintiffs incurred the debt through reckless and ceaseless litigation; and still continue the same before the High Court, Ho. After having heard parties, I found that the plaintiffs have incurred the debt herein recklessly. As a deterrent against such endless litigation, I would have ordered full and immediate payment; but for grace to the plaintiff-debtors who by their further action would appear to have been inspired by the presence of enough and sufficient means.
Accordingly, the plaintiffs’ plea for payment on instalment basis is accepted and granted as follows:
(a) £G50 to be paid by 31 October 1963.
(b) £G20 to be paid for the months of November and December 1963 and January 1964.
(c) Balance debt of £G8 6s. 6d. plus costs of £G6 12s. assessed shall be paid for the month of February 1964.
In default of payment of any instalments when due the three plaintiff-debtors shall each go to prison for two months at the instance of the defendant-creditors.”
[p.471] of [1967] GLR 468
And that is the order which was quashed by the High Court upon certiorari at the instance of the plaintiffs resulting in this appeal.
The basis of the decision of the court below is that upon proper interpretation of the order of the High Court remitting the case to the local court for trial de novo, costs could only be ordered upon trial of the suit on the merits, and since there has been no such trial, the order for costs and the enforcement thereof by the local court is illegal. This decision of the court below was attacked on two main grounds, namely,
that—
(a) The learned judge erred in law in granting the application for an order of certiorari.
(b) The learned judge misdirected himself as to the nature of the application before him.
Counsel for the appellants argued that it was within the competence of the High Court when remitting the case for trial de novo to have made the order for costs, and consequently the costs as taxed by the local court are enforceable so long as the High Court’s order for costs has not been set aside. Counsel further argued that the proper procedure laid down in the Local Court Regulations, 1962 (L.I. 208), for dealing with summons to show cause was correctly followed, therefore the court below misdirected itself in the interpretation it placed upon the order of the High Court as to costs.Now the jurisdiction of the local court, under the Courts Act, 1960 (C.A. 9), in force at the time, is contained in section 98 as amended by section 27 of the Courts (Amendment) Act, 1962 (Act 130). The relevant portions as affects land are as follows:
“98. (1) The civil jurisdiction of a Local Court shall be as follows:—
(a) suits relating to the ownership, possession or occupation of land, where the law applicable is exclusively customary law; . . .
(2) Where it appears that the matter in issue in any area in which a Local Court is situated relates to land or an interest in land, or is a succession cause involving land, which exceeds the value of £G200, such matter shall be determined by the Judge of the High Court for the time being exercising jurisdiction over such area and no Local Court shall have the power to exercise jurisdiction in respect of such matter.” By virtue of this section the local court had no power to exercise jurisdiction over the suit, once it was satisfied that the value of the
[p.472] of [1967] GLR 468
land exceeded £G200. All the local court could do in the circumstances is to refer the matter to the judge of the High Court. It follows that that order for costs made by the local court is void of jurisdiction, is illegal and unenforceable. Therefore the learned judge of the court below properly directed himself in quashing the order for committal made consequent upon the order for costs as illegal.
Again, counsel for the appellants submitted that the procedure followed by the local court in dealing with the summons to show cause was regular. Although he conceded that an inquiry under regulation 145 of the Local Courts Procedure Regulations, 1962 (L.I. 208), is a condition precedent to an order for imprisonment for debt, yet he submitted that once the judgment-debtor made an offer of payment by installments, the jurisdiction to commit accrued even though the terms offered were either not accepted by the execution creditor, or considered reasonable by the local court. This reasoning is fallacious; the local court is only empowered to order payment of an installment which is proved to be within the competence of the execution-debtor, and to order his imprisonment in default of compliance with that order. Where, as in this case, the execution debtor’s offer of monthly instalments is refused, the onus is upon the execution creditor to prove the means of the debtor; if he fails to discharge that onus, the local court should not make any order. In this case the execution–creditors made no attempt to prove the means of the debtors, therefore there was no ground upon which the local court could justifiably make the order for committal.
For that reason also the order for committal is illegal and was properly quashed by the court below.
For these reasons, the appeal is dismissed with costs fixed at N¢87.00.
DECISION
Appeal dismissed.
S.O.
