TOMFO vs. AWONA AND ANOTHER [1973] 2 GLR 437

CASES REFERRED TO

(1) Avulete v. Abortsi, W.A.C.A., 31 January 1949, unreported.

(2) Yeboah v. Taibil (1952) 14 W.A.C.A. 41.

(3) Amoku v. Duro (1953) 14 W.A.C.A. 257.

(4) Ely (Dean of) v. Bliss (1842) 5 Beav. 574; 49 E. R. 700.

NATURE OF PROCEEDINGS

APPEAL from the judgment of a district court (grade II), upholding the claim of the respondent in a land suit, wherein the respondent had at the trial raised the issue of want of jurisdiction. The facts are sufficiently set out in the judgment.

COUNSEL

James Mercer (with him E. Bentsi-Enchill) for the appellants.

S. K. Essiem for the respondent.

JUDGMENT OF CHARLES CRABBE J.

The plaintiff-respondent (hereinafter called the plaintiff), claimed from the defendants-appellants (hereinafter called the first and second defendants), jointly and severally the sum of twenty cedis being the value of 50 oil palm trees at 40 pesewas a tree. The first defendant was alleged to have felled those trees on the plaintiff’s land at Ankyiren. The second defendant was alleged to have authorised the first defendant to fell the same without the plaintiff’s knowledge and consent.

By his statement of claim the plaintiff claimed that the land in dispute was the self-acquired property of one Papa Ohia, an ancestor of his. Various members of his family had succeeded to this land, the plaintiff being now the one in possession. When the land became vested in the plaintiff by his family he was in the Ankyiren area and he gave a portion of the land to his brother Nyame Aboa who farmed the land.

When he, the plaintiff, returned to Ankyiren from Nzima he started farming on the land in dispute. The second defendant disputed his right to the land, he resisted and drove away the second defendant from the [p.439] of [1973] 2 GLR 437 land. The second defendant instituted an action against him but that was discontinued. About two months after the discontinuance, the plaintiff discovered that the first defendant had felled 50 oil palm trees on the land without his knowledge, his consent, or permission. Inquiries revealed that the first defendant had stated that the trees were given to him by the second defendant. This statement was confirmed by the second defendant to the plaintiff.

To this statement of claim the defendants averred that the second defendant is a descendant of one Samuah Kojo and Ebokure Tia who first cultivated the virgin forest concerned. They were succeeded by Esuwa Kofi and now the second defendant and his brother Kweku Tom were in possession of the disputed land having succeeded Esuwa Kofi. When the plaintiff returned to Ankyiren he found the defendants on the land and thus it was the plaintiff who committed an act of trespass by entering on the land and felling some trees.

The second defendant and his brother Kweku Tom then lodged a complaint against the plaintiff before the chief of Ankyiren, Nana Blay, who together with some elders held an arbitration at which the matter was gone into. The disputed land was inspected. The arbitrators found in favour of the second defendant and his brother, costs being awarded against the plaintiff.

As a result of further acts of trespass by the plaintiff, a second complaint was lodged with Nana Blay but the plaintiff refused to appear. The plaintiff was taken to court but the case was struck out.

At the hearing counsel for the plaintiff raised the issue that the area in dispute being 28.5 acres and its value more than ¢3,000, the magistrate’s court had no jurisdiction to deal with the matter. This was after the surveyor, who was asked to prepare a plan of the area in dispute, had given evidence. The original action was in respect of 1.4 acres. Counsel for the defendants associated himself, and was in complete agreement, with the statement made by counsel for the plaintiff, that the matter should be referred to the High Court for directions.

The magistrate accordingly wrote to the High Court of Justice. The registrar replied quoting the justice concerned as follows: “Case to go back to the court below to determine the value of 28.5 acres. The mere assertion by counsel that the total area in dispute is 28.5 acres and its value definitely exceeds ¢500.00 does not help.”

As a result of this direction the case was heard by the magistrate who entered judgment for the plaintiff. Hence this appeal. The grounds of appeal as originally filed were that the judgment was against the weight of evidence and that the costs awarded were excessive. An additional ground was added that, “the trial Magistrate had no jurisdiction to hear and determine the case.”

Counsel for the defendants argued mainly on the issue of jurisdiction. He referred to Order 58, r. 15 of the Supreme High Court (Civil Procedure) Rules, 1954 (L.N. 140A), and to paragraph 49 (2) of the Courts Decree, 1966 (N.L.C.D. 84), and subsection (2) of section 37 of the Courts

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Act, 1971 (Act 372). He contended that when a matter was before the district court the action developed into a determination of title, hence the reference to the High Court. The law enjoined the High Court to determine the matter and that even if it were argued that counsel consented to the case being tried by the district court that consent could not oust the positive requirements of the law. He also referred to Maxwell on Interpretation of Statutes (12th ed.), p. 332; Avulete v. Abortsi, West African Court of Appeal, 31 January 1949, unreported; Yeboah v. Taibil (1952) 14 W.A.C.A. 41 and Amoku v. Duro (1953) 14 W.A.C.A. 257.

For his part counsel for the plaintiff contended that at the time the case was gone into the proper law was the Courts Act, 1971 (Act 372). The value of the land was estimated at about 3,000 cedis. There was no dispute as to the value of the land and therefore it would defeat the ends of justice to allow such technicalities to impute the well considered judgment of the court below. The case went on, on the basis of consent.

In Avulete v. Abortsi (supra), a case was stated for the opinion of the West African Court of Appeal whether (as stated in Yeboah v. Taibil (1952) 14 W.A.C.A. 41 at pp. 42-43):

“When the Land Court, sitting in its appellate capacity, decides to re-hear a cause in whole under the provisions of section 50 of the Native Courts (Colony) Ordinance, 1944, should the Court before hearing the evidence first set aside the judgment of the Native Court from which the appeal is made?”

The court held that it was wrong for the trial judge to have set aside the judgment of the court below having “decided to direct a re-hearing by the Land Court.” Said Blackall P.:

“It appears to me that under section 50 of Ordinance No. 22 of 1944 a distinction is drawn between the procedure to be followed where the Land Court decides to re-hear a cause itself and where it decides to refer the case back to the Court below for re-hearing. In the latter event it is expressly provided that the re-hearing shall be de novo and this necessitates the original judgment being set aside. But the words ‘de novo’ are not to be found in that part of the section which deals with a re-hearing by the Land Court. On the contrary the Land Court may re-hear the cause if it chooses so to do, and may either reverse, vary or confirm the decision of the Court below. But if it were obliged to set aside the judgment of the Court below the exercise of these powers would be stultified. It would not be practicable to re-hear the cause in part for that would leave the remainder of the case unheard. Nor would it be possible for the Land Court to vary or confirm a decision of the Court below which had already been set aside for that decision would have ceased to exist. For the same reason it would not reverse it.”

In Yeboah v. Taibil (supra), the West African Court of Appeal held at p. 43 that Avulete v. Abortsi applied “with equal force” to that case, and that if the judgment of the native court was first set aside, there

[p.441] of [1973] 2 GLR 437 could not be a re-hearing of the cause in the appeal court as there was no judgment left for the appeal court to reverse, vary or confirm.

The above two cases were followed in Amoku v. Duro (supra), the court drawing a distinction between an error in procedure and a defect in jurisdiction appearing on the record. Said the court per Coussey J.A. at pp. 258-259:

“There is, it is true, a distinction between jurisdiction and error in the exercise of jurisdiction. In the Attorney-General v. Hotham (38 E.R. 631) it was held that if a limited tribunal exercises a jurisdiction which does not belong to it, its decision amounts to nothing and does not create the necessity for an appeal.

It was held on the other hand in Padstow Total Loss and Collision Assurance Association (20 Ch.D. 137) that if a superior Court, acting in assumed exercise of a jurisdiction belonging to it, makes an order which, under the particular circumstances of the case, is beyond that jurisdiction, the order, until it be discharged, can be treated as a subsisting order and can only be discharged on appeal . . . The general principle is that whenever jurisdiction is given to a Court by an enactment . . . and such jurisdiction is only given on specified terms or conditions contained in the section itself, those conditions must be complied with in order to create and raise the jurisdiction, for if they are not complied with the jurisdiction does not arise.”

Paragraph (e) of subsection (1) of section 37 of the Courts Act, 1971 (Act 372), gives jurisdiction to the district court (grade I) “in actions relating to ownership, possession or occupation of land where the value of the land does not exceed N¢2,000.00.”

Then subsection (2) of this section states that:

“Where there is dispute as to whether or not any amount claimed or the value of any land or property in any action, cause or matter is in excess of the amount or value specified in subsection (1) of this section in relation to that action, cause or matter the District Court in question shall call evidence as to the said amount or value and if it finds that it exceeds the amount or value specified in subsection (1) it shall, subject to the powers of transfer of the Chief Justice, transfer the case to a Circuit Court or the High Court, whichever of such Courts has jurisdiction in the matter.”

These provisions in section 37 of the Courts Act, 1971 (Act 372), appear to me to be a re-enactment of the provisions of paragraph (e) of sub-paragraph (1), and of sub-paragraph (2) of paragraph 49 of the Courts Decree, 1966 (N.L.C.D. 84). The latter provisions are as follows:

“(1) (e) suits relating to ownership, possession or occupation of land where the value of the land does not exceed ¢480.00.” and “(2) Where there is a dispute as to whether or not the value of the

[p.442] of [1973] 2 GLR 437 amount claimed, or of the land or property, in any suit or matter, is in excess of the amounts specified in sub-paragraph (1), such dispute shall be determined by the High Court on a reference thereto by the District Court, and its decision shall be final. If the High Court determines that such value is in excess of the said amounts, the High Court shall transfer such suit or matter from the District Court to the High Court or the Circuit Court, as the case may be.”

There is not much of difference between the first set of provisions apart from slight differences in wording and the amounts involved. In the first one the amount is “¢480.” In the second the amount is “N¢2,000.00.” There is, however, a fundamental difference between the second set of provisions. The difference is this. Whereas in section 37 (2) of the Courts Act, 1971 (Act 372), “the District Court … shall call evidence as to the said amount or value and if it finds that it exceeds [its jurisdiction] it shall … transfer the case to a Circuit Court or the High Court, whichever of such Courts has jurisdiction in the matter,” under paragraph 49 (2) of the Courts Decree, 1966, “such disputes shall be determined by the High Court on a reference thereto by the District Court, and its decision shall be final.”

The Courts Act, 1971, expressly repealed the Courts Decree, 1966, (N.L.C.D. 84), and all its amending Decrees. It saved only certain statutory instruments bearing on procedure and other related matters. In Ely (Dean of) v. Bliss (1842) 5 Beav. 574, Lord Langdale M.R. said at p. 582 that:

“Every Act of Parliament must be considered with reference to the state of the law subsisting when it came into operation, and when it is to be applied; it cannot otherwise be rationally construed. Every Act is made, either for the purpose of making a change in the law, or for the purpose of better declaring the law, and its operation is not to be impeded by the mere fact that it is inconsistent with the previous enactment.”

It follows from this rule that when the Courts Act, 1971, expressly repealed the Courts Decree, 1966, and re-enacted certain of its provisions in affirmative language, it is clearly the intention of the legislature to make a clean break with the existing law. If, therefore, there is any inconsistency between the Courts Decree, 1966, and the Courts Act, 1971, the provisions of the Courts Act will prevail. I submit, however, that no such inconsistency arises in this case.

The Courts Decree, 1966, empowered the High Court to determine the dispute as to the value or amount. It was a mandatory provision once there was a reference to the High Court by the district court. After it has determined the value, “If the High Court determines that such value is in excess of the said amounts, the High Court shall transfer such suit or matter from the District Court to the High Court or the Circuit Court as the case may be.”

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This is no longer the law. Under the Courts Act, 1971, it is incumbent upon the district court to call evidence as to the said amount or value, and when it finds that by virtue of that amount or value the case is above its jurisdiction, to transfer the case to the appropriate court.

The writ in the present case is dated 28 May 1969. At that date the law in force was the Courts Decree, 1966. The statement of claim of the plaintiff is dated 25 March 1971. At that date the law in force was the Courts Decree, 1966. The statement of defence is also dated 7 April 1971. The Courts Decree, 1966, was still in force.

The motion for summons for directions is dated 15 February 1972. The Courts Act, 1971, had come into force on 22 September 1971. So the law in force, at the time the summons for directions were filed on 16 February 1972 was the Courts Act, 1971.

The case came on for hearing for the first time on 3 June 1969. There were four adjournments. When the case was called on 20 August 1969, both counsel for the parties agreed to the appointment of a surveyor. The surveyor appeared before the court on 17 August 1971 and gave evidence. The law then in force was the Courts Decree, 1966.

On 3 May 1971, the question of jurisdiction was raised and the court said, “in view of the statements made by counsel the case is to be transferred to the High Court accordingly.” On 3 May 1971, the law in force was the Courts Decree, 1966. The law under which the reference was made was therefore, undoubtedly, the Courts Decree, 1966.

On 14 June 1971, the registrar of the district court wrote to the registrar of the High Court. The registrar of the High Court replied to this letter on 30 December 1971. From 14 June to 30 December is a period of over six months. Within this period of over six months the Courts Act, 1971, had come into force. The law had changed.

The record does not show when the letter from the district court was received by the High Court. The record does not show when the matter was put before the justice concerned. There can be little doubt that if there had not been some delay, somewhere, the justice concerned would have dealt with the matter under the Courts Decree, 1966.

The question now is which of the two laws should apply? It is my view that the law applicable is the law under which the reference to the High Court was made. The learned trial magistrate acted under that law. On 3 May 1971 when counsel agreed to the reference the law in force was the Courts Decree, 1966.

Subsection (1) of section 8 of the Interpretation Act, 1960 (C.A. 4), states that:

“The repeal or revocation of an enactment shall not— (a) revive anything not in force or existing at the time when the repeal or revocation takes effect; or (b) affect the previous operation of the enactment or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder; or

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(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed thereunder; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed or revoked.”

The writ in this case was filed on 28 May 1969 when the Courts Decree, 1966, was in force. That was the commencement of the action. The same law was in force when the statement of claim and the statement of defence were both filed. As at April 1971 there was a legal proceeding “in which evidence is, or may be, given.” Indeed evidence was given on 17 August 1971, by the surveyor. The reference of the learned trial magistrate was part of that legal proceeding. The law then in force was the Courts Decree, 1966. The law applicable is therefore the Courts Decree, 1966.

Under that law, i.e., paragraph 49 (2): “Where there is a dispute as to whether or not the value of the amount claimed, or of the land or property… is in excess of the amounts specified … such dispute shall be determined by the High Court on reference thereto by the District Court . . .” The district court in this case did refer the dispute to the High Court. But the High Court did not determine the dispute which it had a mandatory duty to determine. The reference of the case back to the learned trial magistrate was therefore not in accordance with the law then applicable.

In any case the reference back to the learned trial magistrate enjoined him “to determine the value of 28.5 acres.” There is no evidence that the learned trial magistrate determined the value of the land. On 12 February 1972, he ordered that the issues be filed before 19 February 1972. On 26 February 1972, he proceeded to hear the case, that is to say, he continued from where he had left off at the time of the reference to the High Court.

A fundamental issue in the case, raised by one of the counsel before the court, was thus not gone into as required by law. The value of the land upon which rests the jurisdiction of the trial court was never determined. The question of jurisdiction, whether or not the district court had jurisdiction in the case was never determined. The matter was raised by counsel for the plaintiff when he said: “In view of respective claims shown on exhibit C, therefore it is, my submission that the court’s jurisdiction is ousted and the matter should be referred to the High Court for further direction.”

The direction of the High Court, even if it was wrong, was that the district court should determine the value of the land. That was not done. The learned trial magistrate thus assumed a jurisdiction which had been challenged and the proceedings, in my view, in whichever way they are

[p.445] of [1973] 2 GLR 437 looked at were irregular. It is vital that the question of jurisdiction should have been settled. As the West African Court of Appeal said in Amoku v. Duro (supra) per Coussey J.A. at p. 259:

“whenever jurisdiction is given to a Court by an enactment . . . and such jurisdiction is only given on specified terms or conditions contained in the section itself, those conditions must be complied with in order to create and raise the jurisdiction, for if they are not complied with the jurisdiction does not arise.”

On the facts of this case the jurisdiction of the district court, being a grade II court, was governed by the combined provisions of paragraphs 49 and 50 of the Courts Decree, 1966. Under paragraph 50, the jurisdiction of the district court grade II was limited to land valued at ¢360.00. The alleged value of the land was thus far in excess of the jurisdiction of the grade II court. That is the more reason why it was imperative, in the circumstances of this case, for the value of the land to have been determined.

I do not think I need consider the contention of counsel for the plaintiff that the case went on on the basis of consent. As Amoku v. Duro (supra) makes clear, since the requirements of the law upon which jurisdiction was based were not complied with, the jurisdiction of the court did not arise. In other words the district court grade II under the circumstances of this case had no jurisdiction to continue with the case. The trial is thus a nullity.

I will therefore allow the appeal. I order that each side should bear its own costs.

DECISION Appeal allowed.

S.Y.B.-B.