REPUBLIC v. KPANDU DISTRICT COURT GRADE II MAGISTRATE; EX PARTE KLUTSE [1968] GLR 990

DIVISION: HIGH COURT, HO

DATE: 7 NOVEMBER 1968

BEFORE: FRANCOIS J.

NATURE OF PROCEEDINGS

APPLICATION for a writ of mandamus. The facts are sufficiently stated in the ruling.

COUNSEL

I. N. K. Wuaku for the applicants.

W. T. Doku for the respondent.

JUDGMENT OF FRANCOIS J.

The plaintiff was successful in an action he instituted against the defendants in the Kpeve Local Court in 1963. He was awarded costs of £G10 18s. There was no appeal against that decision and I would have thought that on the authorities that judgment could not be impeached by a counterclaim: see Re Padstow Total Loss and Collision Assurance Association (1882) 20 Ch.D. 137, C.A. Be that as it may, the plaintiff sued again for alleged costs awarded by the Kpeve Local Court. Reading the aforesaid judgment, I cannot see how the plaintiff’s present claim by any stretch of the imagination can be so founded. Even if the judgment referred to could be interpreted as ordering costs to be taxed, that could not be the subject of a new suit. The defendants however did not challenge the merits of the claim but sought to put in a counterclaim to set aside the judgment of 1963. The defendants further claimed N¢400 damages for seduction and N¢500 damages for assault. It does not require very much reflection to hold that these claims can hardly succeed: see Dankwa v. Fuller (1957) 3 W.A.L.R. 168, C.A. But that is not the principle at stake. The issue for determination to my mind is whether the magistrate was right to refuse acceptance of a counterclaim purely because he considered it beyond his jurisdiction. Before I consider this in detail, I would briefly comment on an arrogant piece of effusion by the magistrate contained in paragraph (7) of his affidavit in answer to this application. The said paragraph reads as follows:

[p.992] of [1968] GLR 990

“(7) That the refusal of the acceptance for filing of the counterclaim having been grounded on a paragraph of a statute law, there is nothing that this court or any other court in the absence of any other enactment amending paragraphs 49 (2), 50 and 51 of the Courts Decree, 1966 (N.L.C.D. 84), can do in the matter.”

There are a number of things that can be done in the matter. First and foremost is to remind the magistrate that no tribunal is infallible least of all a grade II magistrate’s court, on the interpretation of a statute. Secondly, paragraphs 49, 50 and 51 of N.L.C.D. 84 referred to, merely define the jurisdiction of the district courts. They do not prohibit a suitor from filing his writ in the district court. When the merits of a claim are being considered any party may take objections he considers open to him. To take an example: paragraph 49 (2) cited above allows disputes on the value of land to be referred to the High Court for determination ; the fact that a result of such reference may be the transfer of the suit from the lower court to a higher court, implies that filing the claim in a lower court in excess of that court’s jurisdiction is neither improper nor fatal, and that an appropriate machinery exists for invoking a transfer to a competent court for trial. I hold therefore that the magistrate erred in refusing to accept the defendants’ counterclaim for filing. I shall therefore order a writ of mandamus to issue directed at the District Magistrate Grade II, Kpandu, to accept forthwith the defendants’ counterclaim for filing.

There will be no order as to costs as I consider the entire blame to be the magistrate’s.

DECISION

Application granted.

Writ of mandamus to issue.

L. F. A.