E. Nortei Ababio V. W. A. Kwao & Ors (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Appeal from a decision of the Provincial Commissioner’s Court dismissing an appeal from the Ga Mantse’s Tribunal—meaning of word “decision ” in Sec. 78 of the N.A. Ordinance.

Held : (1) The Ga Mantse’s tribunal was correct when making the Order to the effect that the proceedings before the Osu Mantse’s tribunal should be stopped

(2) (obiter) that the word ” decision ” refers to interlocutory as well as final decisions, and that appeals against interlocutory judgments as to jurisdiction are desirable for the sake of expedience.

There is no need to set out the facts.

K. A . Bossman for Appellant. E. C. Quist for ‘Respondents.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

This appeal arises out of a suit brought originally in the Osu Mantse’s Tribunal about rights to certain land. The Defendants_ the present Respondents, before the hearing began in the Osu Mantse’s Tribunal, had applied to the Provincial Commissioner’s Court to transfer the suit to the Ga Mantse’s Court on the ground that the Osu Mantse’s Tribunal had no jurisdiction. The Provincial Commissioner’s Court refused to transfer the suit saying ” There is nothing to prevent the aggrieved party from pleading non-jurisdiction before the Tribunal (Osu) and that matter can first be thrashed out by the appropriate Tribunal if it is proved be necessary “.

On the suit coming on in the Osu Mantse’s Tribunal the Defendants, the present Respondents, took objection that ” the Tribunal has no jurisdiction to try the case herein as they axe interested in the matter in question as Osu joined them in 1933 The Osu Mantse’s Tribunal in a ” ruling ” repelled this objecticm on the ground that it was the same as the application which had been made to, and refused by, the Provincial Commissioner’s Cour: It was ordered that the hearing of the suit should proceed and the hearing was begun.

Against the ” ruling ” of the Osu Mantse’s Tribunal the Ababio Defendants-Respondents appealed to the Ga Mantse’s Tribunal _K,„.^v_a•₀ &

OTS.

under section 78 of the Native Administration Ordinance, Cap. 76.

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The Ga Mantse’s Tribunal after hearing parties and viewing the pKt land on this appeal came to several conclusions of fact and law :— Graham

1. ” The attitude of the Tribunal below makes it abundantly Paul, CM. clear that it was interested in the matter “
2. ” The same persons are being wanted to determine whether the land was Plaintiffs or not . . . . It is natural therefore that the interestedness of the Osu Tribunal will prejudice the cause of justice “.
3. ” . . . . the disputed land is outside the jurisdiction of the Osu Tribunal. Section 49 of the Native Administration Ordinance therefore debars the Tribunal from hearing this cause “.

Having come to these conclusions the Ga. Mantse’s Tribunal ordered that the further hearing of this case before the Osu Mantse’s Tribunal be stopped in accordance with section 74 of the Native Administration Ordinance with liberty to apply to any other Court or Tribunal.

Against that order the present Appellants appealed to the Provincial Commissioner’s Court, not attacking at all in the grounds of appeal the merits of the order but only the power of the Ga Mantse’s Tribunal to deal with such an appeal or to make such an order.

The ratio decidendi of the judgment of the Provincial Commissioner’s Court on this appeal is difficult to understand. He expressly upheld the contention of the Appellants in his Court that no appeal lay to the Ga Mantse’s Tribunal under section 78 in respect of an interlocutory ruling made by the Osu Tribunal. Having so expressed himself he proceeded to dismiss the appeal before him.

Against that judgment the Appellant has appealed to this Court. In this Court Respondents’ Counsel stated that he sought to defend the order of the Provincial Commissioner’s Court dismissing the appeal but not the reasoning on which it was based.

Appellant’s Counsel in this Court had two main contentions :—

1. That the word ” decision ” in section 78 meant only ” final decision ” and not ” interlocutory decision ” and that, therefore, no appeal lay against the Osu Tribunal’s interlocutory order ; and
2. That the Ga Mantse’s Tribunal could not in an appeal brought under section 78 make an order by virtue of its powers under section 74.

It is perfectly clear that whenever and however a Paramount Chief’s Tribunal is satisfied of the facts necessary for action under section 74 it is the duty of the tribunal to take such action. This would apply if the occasion of the Paramount Chief’s Tribunal being satisfied of these facts were the hearing of an appeal quite incompetently brought before it. It is clear therefore that the order made by the Ga Mantse’s Tribunal in this case under section 74 was quite in order.

It is unnecessary therefore in this appeal to decide the question raised as to the meaning of the word ” decision ” in section 78, but it is perhaps as well to indicate—though obiter dictum in this appeal —that it is difficult to see how the word ” decision “, unqualified as it is, can refer only to ” final decision “. It may be, as Appellant’s Counsel suggested, that inconvenience may arise from the application of this section to all interlocutory decisions, but if so, it is for the Legislature to take steps to deal with that inconvenience. It may be observed, on the other hand, in regard to the particular facts of this case, that it does seem to be only reasonable that a lower Court should not be allowed to put the parties to the trouble and expense of a long trial in a case where its jurisdiction is questioned and where after final judgment on appeal it may be found necessary to have the same long trial all over again in the proper Court. Appeals against interlocutory judgments as to jurisdiction would appear to be desirable.

This appeal is dismissed with costs. The order of the Court below as to costs is set aside and the present Respondents are awarded costs in the Ga Mantse’s Tribunal, in the Provincial Commissioner’s Court and in this Court. The costs in this Court are assessed at £11 14s. 6d.