Kwaku Nyako V. A. E. Akwa & Ors (1949)
LawGlobal Hub Judgment Report – West African Court of Appeal
Action commenced in Native Court abolished between commencement of action and hearing—Action continued and heard de novo in another substituted Native Court—Waiver of irregularity—Jurisdiction.
The Order-in-Council abolishing one Native Court and substituting another therefor brought to an end all actions then pending in the first Native Court.
Following R. v. Hughes (1), the absence of the issue of a summons as prescribed by rules of procedure could not take away the jurisdiction of the second Native Court.
Case referred to:
(1) R. v. Hughes (1879), 4 Q.B.D. 614; 48 L.J.M.C. 151; 40 L.T. 685; 43 J.P. 556; 14 Cox C.C. 284.
Appeal from the Supreme Court of the Gold Coast (Appellate jurisdiction). Djan for Appellant (defendant at first instance).
Danquak for Respondents (plaintiffs at first instance).
The following Judgment was delivered:
Verity, C.J. This is an appeal against a judgment of Coussey, J., dismissing an appeal to the Lands Division of the Supreme Court from a judgment of the Native Court of Okwawu Grade ” A “.
The first ground of appeal, which does not go to the merits, is that
” The learned Judge was wrong in holding that the proceedings were not irregular and therefore null and void, when action was instituted in Native Court ‘ B ‘, but without any order of transfer was heard at Native Court
| A | PP |
The circumstances which give rise to this ground of appeal are that the action was originally commenced in the Grade ” B ” Court on 8th June, 1945. By an Order-in-Council dated 24th July, 1946, and before the hearing of the case had commenced, the Native Court Grade ” B ” was abolished and a Native Court Grade ” A ” substituted therefor, the jurisdiction of which included but was more extensive than that of the former Court. Without the issue of a fresh summons the Grade ” A ” Court proceeded to hear the case, the claim, as filed in the Grade ” B ” Court, was read out and the defendant and co-defendant (of whom the former is the appellant herein) pleaded ” Not liable “. No objection was raised as to the irregularity of the proceedings, which occupied several days, and on 23rd December, 1946, the Court gave judgment in favour of the present respondents.
T ; unsuccessful defendant appealed to the Lands Division of the Supreme Court and there for the first time raised; as a ground of appeal, the irregularity of the procedure. The learned Judge who heard the appeal, held- that the suit having been adjourned when the Grade ” B ” Court was closed and the Grade ” A ” Court came into existence, and the Grade ” A ” Court having heard the case de novo there was no irregularity. I think that in this the learned Judge erred. The proceedings had been commenced in one Court and were heard and
determined in another. Neither the Native Courts Ordinance No. 22 of 1944 nor the Order-in-Council which abolished the first Court and constituted the second made any saving in regard to pending causes and in the absence of any such saving it appears to me that all causes pending in the Grade ” B ” Court were brought to an end when that Court was closed. The correct procedure would have been, therefore, to commence the suit de novo in the Grade ” A ” Court, and I have no doubt that this Court in hearing and determining the suit exercised their jurisdiction to entertain the claim, but in accordance with the Native Courts (Colony) Procedure Regulations, 1945, the proceedings therein should have been commenced by application for and issue of a summons.
The ground of appeal with which I am dealing, however, is inaccurate where it implies that by reason of an irregularity proceedings are therefore null and void. The question to be determined is in reality whether there has been such an irregularity in the proceedings as may have been waived by the appellants by their pleading without objection and taking part in the proceedings up to judgment, or whether the proceedings were, by reason of the absence of any summons in that Court, a nullity.
Regulation 2 of the Regulations to which I have referred provides that:—”Every civil cause shall be commenced by:
- a summons, or
- oath, and
” every criminal cause shall be commenced by :
- a summons;
- a warrant to arrest;
- bringing a person arrested without a warrant before the Native Court, or
- oath.”
I have referred to the latter part of the section relating to criminal causes because the Regulations which follow in regard to the issue of a summons relate equally to both civil and criminal causes, a matter which may be of considerable importance in the determination of this question.
Regulation 3 provides that :—
” Application for a summons may be made by written complaint or in person.”
By these words I take it that the complaint may be made either in writing or orally, and it is to be observed that whereas Regulation 2 purports to provide that every civil cause shall be commenced by summons or oath, yet by virtue of Regulation 3 it is clear that, in the former case, the proceedings are in reality to be commenced by an application for a summons which may be made by an oral complaint. It is now clear that we must get away from the idea of the commencement of proceedings by a Writ of Summons such as is the procedure in an action in the Supreme Court of Judicature. The procedure laid down by the, Regulations is analogous rather to that of a Court of summary jurisdiction, a comparison which appears the more apt in that in regard to the institution of proceedings by oral complaint and issue of summons there is no distinction between civil and criminal causes.
It is on this basis that I would proceed to examine the question as to whether the irregularity in these proceedings is such as to have been waived by the absence of objection and the pleading by the appellants or whether by reason of the absence of a summons” in the Grade ” A ” Court the proceedings were a nullity.
On the analogy I have drawn the decision of the Court of Crown Cases Reserved in R. v. Hughes (1) is, in my view, applicable. In that case a Police Constable procured a warrant to be illegally issued without a written information or oath;
upon that warrant the defendant in the proceedings in the Court of summary jurisdiction was arrested and brought before the justices, and was, without objection on his part, tried and convicted. In subsequent proceedings against the Police Constable for perjury in the course of the earlier trial, the question as to the validity of the earlier trial arose on the ground that the proceedings in which he was alleged to have committed perjury were “informal and without jurisdiction in the Magistrates who heard the case “.
Bramwell, L. J., stated a case for the consideration by the Court of Crown Cases Reserved, and the question was argued before no less than ten Judges who held (Kelly, L.C.B., dissenting) that the Constable was rightly convicted notwithstanding that there was neither written information nor oath to justify the issue of the warrant, and that the justices had jurisdiction to hear the charge though the warrant upon which the accused was brought before them was illegal. It is of interest to observe that, although there had been no written information nor oath and therefore no lawful warrant, there was in’oral charge or complaint, and the defendant was in fact before the Court and pleaded without objection to the unlawful manner in which he had been brought before it.
Several judgments were delivered by their lordships, some at considerable length. I would refer, however, to no more than those of Lopes, J., Hawkins, J., and Huddleston, B.
Lopes, J., in the course of his judgment said,-
” I am of the opinion that whether Stanley was summoned, brought by warrant, came voluntarily, was brought by force, or under an illegal warrant, is immaterial: being before the justices, however brought there, the justices if they had jurisdiction in respect of time and place over the offence, were competent to entertain the charge . . . “
Hawkins, J., said:—
” A flood of authorities might be cited in support of the proposition that no process at all is necessary, when, the accused being bodily before the justices, the charge is made in his presence, and he appears and answers to it.”
Huddleston, B., said :—
” Principle and the authorities seem to show that objections and defects in the form of procuring the appearance of a party charged will be cured by appearance. The principle is that a party charged should have an opportunity of knowing the charge against him and be fully heard, before being condemned. If he has the opportunity, the method by which he is brought before the justices cannot take away the jurisdiction to hear and determine, when he is before them.”
I have not failed to bear in mind that in the case to which I have referred the proceedings were in relation to a criminal charge and not a civil suit but as I have pointed out, in the procedure under the Native Court Procedure Regulations there is no distinction between criminal and civil causes in relation to the commencement of proceedings by a,.complaint in person and the procedure is substantially the same as that proocnW. by the Summary Jurisdiction Acts upon the effect of which the case of R. v. Hughes (1) was decided. In the present case I am not aware of the means whereby the attendance of the appellants was secured: the fact remains that they were before the Grade ” A ” Court, which had jurisdiction to hear and determine the complaint ; that they were given the opportunity of knowing the nature and particulars of the complaint; that they pleaded thereto and were fully heard, and in my view on the authority of the case to which I have referred the absence of the issue of a summons as prescribed by rules of procedure could not take away the jurisdiction of the Court before which they appeared and answered to the complaint.
In regard to the other grounds of appeal which allege that the judgment was against the weight of evidence and was wrong in. that it failed to follow the Native Customary Law relating to succession, I do not propose to say more than that there was evidence to support the findings of the Native Court, with which the learned Judge of the Lands Division concurred. I see no reason to disturb those findings, and I consider, therefore, that the appeal should be dismissed with costs.
Appeal dismissed.
