ASARE v. TEING AND ANOTHER [1960] GLR 155

DIVISION: IN THE HIGH COURT (LANDS DIVISION), ACCRA

DATE: 7TH JUNE, 1960

BEFORE: OLLENNU J.

CASES REFERRED TO

(1) Saman v. Otsiwaba 2 W.A.L.R. 284;

(2) Colonial Sugar Refining Co. Ltd. v Irving [1905] A.C. 369.

NATURE OF PROCEEDINGS

APPEAL from a decision of the Local Court “A” (Appeal Section) of West Akim Abuakwa District on October 29, 1959 reversing a decision of the Kade Local Court “B” on June 10, 1959 in favour of the plaintiff in an action for declaration of ownership of land and damages for trespass.

COUNSEL

Kwenin for plaintiff.

Arthur for defendant.

JUDGMENT OF OLLENNU J.

The jurisdiction of the Land Court, a division of the High Court, both original and appellate, was given by section 24 subsection (1) of the Courts Ordinance, Cap. 4, which reads:

“24. (1) There shall be a Division of the High Court, to be known as the Lands Division, which shall within Ghana exercise jurisdiction in all causes and matters relating to the ownership, possession or occupation of lands, specifically assigned to the Lands Division by this or any other Ordinance.”

The causes and matters assigned to it for the exercise of its original jurisdiction are set out in subsection (4) of the said section 24 which says:

“(4) Subject to the provisions of section 19 of this Ordinance a Land Court shall have exclusive original jurisdiction to hear and determine any cause or matter relating to ownership, possession or occupation of land …”

The said causes and matters are there set out.

Section 26 of the Ordinance shows that the “causes or matters” mentioned in section 24 (1) include original cases and matters and appeals, for it says:

“26. Any party who is aggrieved by a decision of the Land Court exercising its original or any appellate jurisdiction, may appeal to the Court of Appeal in like manner and subject to the like conditions as if the appeal were an appeal to the Court of Appeal from a Divisional Court.” One of the Ordinances which specially assign causes or matters relating to ownership, possession or occupation of land to the Land Court for the exercise of its appellate jurisdiction is the Native Courts Ordinance Cap. 98; another is the Local Courts Act now in force in this Region. The proviso to section 46, and section 47 of the Native Courts (Southern Ghana) Ordinance Cap. 98 are relevant in this connection. Section 47 of the Native Courts (Southern Ghana) Ordinance Cap. 98 provides that:

“Any party aggrieved by the decision or order of a Native Appeal Court or a grade A Native Court in a land cause in which the subject

[p.157] of [1960] GLR 155 matter of the cause is of the value of fifty pounds or upwards may appeal to the Land Court.”

And section 49 subsection (2) of the Local Courts Act provides as follows:

“(2) Any party aggrieved by the decision of a Local Court in land and succession causes in which the subject matter exceeds the value of one hundred pounds may appeal to the District Court and further to the High Court of Justice and to the Court of Appeal.” It is true that by virtue of section 76, subsection (3) of the Local Courts Act, the Native Courts (Southern Ghana) Ordinance, Cap. 98 ceased to have effect in the Eastern Region of Ghana from and after the 23rd day of November, 1959, the day on which local courts were established in this Region under section 3 of the Act. But in my opinion the repeal of the said Native Courts Ordinance does not in any way affect the jurisdiction of this court or indeed of any other tribunal as a court of appeal under the said Ordinance, except a native appeal court established under the repealed Ordinance, which ceased to exist as a tribunal by reason of the repeal of the statute by which it was created. Sections 46 and 47 of the Native Courts Ordinance which assign appeals in land causes and matters to the Land Court for the exercise of the Land Court’s appellate jurisdiction, merely gave a right to party aggrieved with a decision of a native court to appeal to the Land Court. They did not create the appellate jurisdiction of the Land Court. Therefore, the Local Courts Act which repealed the Native Courts Ordinance, cannot be construed retrospectively to take away the right to appeal which had accrued to and become vested in a party prior to the date of the abolition of the native court. A statute is always prospective, and cannot interfere with a right which is already in existence unless it contains express words or unless there is the plainest implication to that effect. In the case of Saman v. Otsiwaba (2 W.A.L.R. at p.287) the court applying the principle enunciated above, said: “The long string of authorities draw a distinction between Acts affecting rights and Acts affecting the procedure for exercising rights already acquired . . . I think, too, that a distinction must also be drawn between a ‘ right ‘ and the jurisdiction of a court to entertain or adjudicate upon that ‘right’ … unless there is a saving clause in the revocation Act itself.” In the case of the Colonial Sugar Refining Co. Ltd. v. Irving [1905] A.C.369, it was held that:

“although the right of appeal from the Supreme Court of Queensland to His Majesty in Council given by the Order in Council of June 30, 1860, has been taken away by the Australian Commonwealth Judiciary Act, 1903, s.39, sub-s.2, and the only appeal therefrom now lies to the High Court of Australia, yet the Act is not retrospective, and a right of appeal to the King in Council in a suit pending when the Act was passed and decided by the Supreme Court afterwards was not taken away.” The Australian Commonwealth Judiciary Act, 1903, did not and could not repeal the Order in Council which gave the Privy Council its

[p.158] of [1960] GLR 155 jurisdiction; all it did was to take away the right to appeal to it; therefore the Privy Council had jurisdiction to entertain an appeal by a person to whom a right to appeal had accrued prior to the effective date of the Commonwealth Judiciary Act. In the course of the judgment of the Privy Council, their Lordships said (at p.372):

“To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal.”

The appellate jurisdiction of this court has not been taken away by the Local Courts Act; that jurisdiction still belongs to this court. The Local Courts Act also gives to a person aggrieved by a decision of a local court a right to appeal to this court, and even though as a second appeal court, yet an appeal court still. On the other hand the Act makes no provision for a person aggrieved by a decision of a native court ‘A’ or a native appeal court in a land suit, who had not commenced appeal proceedings prior to the Act coming into force, to appeal to the district magistrate’s court, to which court there was no right of appeal from a decision of a native court. The right of that person to appeal would nevertheless remain, and not be affected by the new Act. The only court to which such an aggrieved party can appeal in exercise of the right of appeal so vested in him, is the Land Court.

The only tribunals abolished by the Local Courts Act are the native appeal courts and therefore if no provision is made in the Act for the continuance and determination of appeals pending before a native appeal court prior to its abolition, such appeals would perish with the abolition of the native appeal courts, before which they were pending, and the right though not taken away by the statute cannot be exercised: hence the provision in section 16 of the Local Courts Act for the continuance of such appeals. Section 16 (1) (b) of that Act provides as follows:

“(16) (1) Subject to the provisions of sub-section (2) of this section, any cause or matter begun and pending in a Native Court immediately prior to the establishment of a Local Court area under this Act in the area of jurisdiction of such Native Court shall be disposed of in the following manner— “(b) if it is a cause or matter on appeal the appeal shall lie to the appropriate District Court and subject to the provisions of this Act the same appeal, if any, shall lie therefrom as if the appeal had originally been instituted in the said District Court.” Section 53 of the Act which is the section of the Local Courts Act dealing with appeals which, immediately prior to the establishment of a local court were pending in any court, as distinct from appeals pending in a native appeal court, simply repeats the principle of law laid down in the case of Irving cited above. This is what it says: “53. Any appeal proceedings in any cause or matter which were immediately prior to the establishment of a Local Court under this Act pending before any Court from a Native Court may be continued [p.159] of [1960] GLR 155 and concluded by such Court in like manner as if the appeal were from a Local Court and every judgment, order, or sentence given, issued or passed, in such appeal proceedings may be enforced in such manner and the same further appeal if any shall lie therefrom as if it were a judgment, order or sentence in an appeal from a Local Court.”

The words “such court” must be interpreted to mean the court before which the appeal was pending, provided it is a court which has not been abolished by the Act. In my opinion the words “in like manner as if the appeal were from a Local Court” must be interpreted to include courts which are exercising jurisdiction as second appeal courts. I am confirmed in this opinion by the provisions of section 16 (1) (b) already referred to. The only pending appeals in which the district magistrate’s court, the first court of appeal under the Act, is given jurisdiction are appeals which were pending in a native appeal court. Thus the extent of the appellate jurisdiction given to the district magistrate’s court under the Act is the same as that possessed by a native appeal court, but no more; it does not include the jurisdiction which belongs to a higher appellate court. The present appeal affords a good example.

It has passed through a native appeal court, and is now before this court on further appeal. Since by section 16 (1) (b) the appellate jurisdiction of the district magistrate’s court is equivalent to the jurisdiction of a native appeal court, it will be ridiculous to argue that the same district magistrate’s court can be a court of appeal from decisions given by a native appeal court, a tribunal of concurrent jurisdiction. To interprete section 53 in the way counsel for the respondent suggests is to fall into the fallacy of saying that the Act constitutes the district magistrate’s court a court of appeal from decisions given by itself and by courts exercising or which exercised jurisdiction concurrent with its own.

I hold therefore that since the Local Courts Act has not taken away the jurisdiction of this court as a court of appeal from the decisions given in causes or matters commenced in a native court, and since the said Act is prima facie prospective and does not either by express words or by the plainest implication show the contrary, it cannot interfere with an existing right of appeal; and since the Act did not create any court other than this court to hear appeals from decisions of a native appeal court or of the district magistrate’s court which has assumed the appellate jurisdiction which belonged to the native appeal court under the Native Courts Ordinance, and further since this is the only court vested with competent jurisdiction to adjudicate upon the right which had accrued to the appellant prior to the effective date of the Local Courts Act, I hold that this court has jurisdiction to hear the appeal. It is for these reasons that I ruled against the preliminary objection taken by counsel for the respondent.

The claim for damages for trespass and for declaration of ownership made by the plaintiff is based upon an alleged gift inter vivos made to her in accordance with customary law by her late father.

[p.160] of [1960] GLR 155

(His lordship then referred to the evidence): To succeed on her claim the plaintiff must prove that she obtained a valid gift from the father. The essentials of a valid gift made in accordance with customary law are publicity, acceptance, and placing the donee in possession. The way to give publicity to a gift of land is to make the gift in the presence of witnesses, particularly members of the family of the donor who would succeed to the property upon the donor’s death intestate; and the acceptance must be evidenced by the presentation of “drink” or some small amount of money to the donor, part of which is served to or shared among the witnesses to the transaction.

Possession is given by taking the donee to the land, owners of the adjoining lands having been given previous information to stand on their boundaries and the donee is taken round the said boundaries.

In the absence, however, of publicity of the gift at the moment of its making, possession and occupation by the donee and the open exercise by him of rights over the land, which is incapable of any other explanation except that the person in such possession is the owner, will be sufficient evidence and publication of a gift. The plaintiff led no evidence to prove any of these essential requirements of a valid gift made in accordance with customary law.

DECISION

Appeal dismissed.