Kojo Amuakwa V. Kwamin Anyan (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for Rent—Privity of Contract—Jurisdiction—Sections 43 (1) and 2 (c) Native Administration Ordinance—Section 58 Native Administration Ordinance—Question of agreement between parties that obligations should be regulated by English law and not by native customary law.

Held : Since trial Court found that defendant was not a party to agreement it could not be held that parties agreed that their obligations should be regulated by English law ; consequently trial Court had no jurisdiction to pronounce judgment. Appeal allowed, proceedings stayed and parties referred to competent Native Tribunal.

The facts are sufficiently set out in the judgment.

W. Awooner Renner (with him C. F. Hayfron Benjamin) for Appellant.

J. Bannerman-Hyde (with him R. S. Blay) for Respondent. The following judgment was delivered :-

PETRIDES, C. J., GOLD COAST.

The facts are fully set out in the judgment of the learned trial Judge. From this it appears that the plaintiff-appellant claimed, under a written agreement dated the 4th November, 1930, the sum of £605 16s. 5d. as balance of rent due in respect of 201 acres of land, at 20s. per acre, for the years 1930, 1931 and 1932 and, by reason of a parol variation of that agreement, £100 19s. 5d. as rent of this land at 10s. per acre, for the year 1933. The respondent was given credit for £2 3s., and the total claim was thus reduced to £704 12s. 10d.

The learned trial Judge found that the alleged agreements on which the plaintiff-appellant relied were not entered into with respondent personally, but with certain persons who were alleged to represent the Gomoa farmers, and that there was no evidence to show that respondent ever authorised such persons to represent him or that he was aware that any negotiations were taking place which affected his tenancy. He accordingly non-suited the plaintiff with costs.

The plaintiff-appellant appealed against this judgment on various grounds. At the hearing of this appeal plaintiff-appellant

asked and was granted leave to add to these a further ground to the effect that the trial Judge had no jurisdiction over the case. Under this head appellant contended that, as the action was one for rent and therefore a suit relating to the ownership, possession, or occupation of lands situate within the State of the Paramount Chief of Agona, and thus within the jurisdiction of that Chief’s Tribunal by reason of section 43 (1) and (2) (c) of the Native Administration Ordinance, the trial Judge should have stopped the proceedings and referred the parties to the competent Tribunal as required by section 58 of the Native Administration Ordinance.

Respondent’s Counsel, in reply, argued that by. reason of the proviso to section 43 (1) this action was not cognisable by the Paramount Chief as plaintiff’s cause of action was based on a formal written agreement, the terms of which left no doubt that the parties thereto had by implication agreed that their obligations in connection therewith should be regulated by English law and not by native customary law.

That the parties to the agreement of the 4th November, 1930, impliedly agreed that their obligations in connection therewith should be regulated by English law and not native customary law is, we think, probable. The trial Judge has, however, found that the defendant was not a party to that agreement and that there was no evidence of any privity of contract between the plaintiff and the defendant. On these findings it is obviously impossible for the Court to hold that it appears from the transactions out of which this cause of action has arisen that the parties expressly or by implication agreed that their obligations in connection with such transactions should be regulated by English law and not by native customary law_.

On the findings of the trial Judge it is clear that the plaintiff’s remedy, if any, must be sought from the Paramount Chief’s Tribunal and that the Divisional Court was not, in all the circumstances, entitled to pronounce any judgment.

The appeal is allowed and all further proceedings before the Supreme Court or this Court are stayed. The parties to the cause are referred to the competent Tribunal, i.e. that of the Paramount Chief of Agona.

The respondent is awarded costs as between solicitor and client of the proceedings in the Court below, such costs to be taxed. Each party to bear his own costs of this appeal.

KINGDON, C. J., NIGERIA.

I concur. YATES, J.

I concur.