Archie Kwow V. Ohene Essien Eku II (1934)

LawGlobal Hub Judgment Report – West African Court of Appeal

Appeal from Native Tribunal under sectionIJi of the Native Administration Ordinance (Cap. 111) to the Court of the Provincial Commissioner lies where case was a “Suit or matter relating to the Ownership, possession or occupa rion of any land “—Claim to share in rent of land.

Held: Claim came within section 75. Appeal allowed and caw remitted to Court of Provincial Commissioner for appeal to be heard on its merits.

The facts of the case are sufficiently set out in the judgment.

R. S. Blay for Appellant.

F. Awoonor Williams for Respondent. The following judgment was delivered:— KINGDON, C.J., NIGERIA.

The short point in this case is whether the case before the Native Tribunal was a ” suit or matter relating to the

possession or occupation of any land ” so that an appeal would lie from the decision to the Provincial Commissioner’s Court under section 75 of the Native Administration Ordinance (Cap. 111). In cases such as this the real issue between the parties must be the test and not merely the wording of the suit. An examination of the record in this case shows that the real issue between the parties was whether the plaintiff was entitled to a two-thirds share (as be claimed) or only to a one-third share (as defendant contended) of the rent of certain land in respect of his ownership of it. It is clear to me that this question is At matter relating to the ownership of land, though in form the suit is not one to establish ownership or claim to title. I am of opinion therefore. that an appeal from the decision of the Native Tribunal did lie to the Provincial Commissioner’s Court, and that the Provincial Commissioner was wrong in holding that the case was a money count action and in dismissing the appeal to him on that ground. I am of opinion that this appeal should be allowed and the case remitted to the Provincial Commissioner’s Court to be heard and decided upon, its merits, and that the appellant should be awarded costs in this Court and the costs up to date in the Provincial Commissioner’s Court.

The appeal is allowed and the ease is remitted to the Provincial Commissioner’s Court to be heard and decided upon its merits.

The appellant is^– awarded costs in this Court assessed at £36 2s. and costs in the Provincial Commissioner’s Court up to date to be taxed.