Kwesi Kwaa V. Kofi Kwakwa (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim in native Tribunal to set aside a previous judgment of sameCourt ofTribunal on grounds of lack of jurisdiction, irregularity, mistakeProvincialCornfraud.

Held : Court cannot set aside a judgment regularly obtained in it and action

exercisingmisconceived : appeal allowed and judgment of trial Court restored.

Appellate

Jurisdiction.There is no need to set out the facts.

C. H. F. Benjamin for Appellant.

E. C. Quist (for Abadoo) for Respondent.

The following joint judgment was delivered :-

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

Plaintiff-respondent took proceedings against the defendant-appellant in the native Tribunal of Ayeldu by writ dated 9th October, 1934. The writ, as amended, reads :—

” The plaintiff’s claim is to set aside the judgment or order of the native Tribunal of Ayeldu dated on or about the 25th day of January, 1934, in the suit Kofi Kwakwa v. Kwesi Kwaa whereby the plaintiff’s family ancestral land known as and called Owura Ekyir situate at Ekropon in Abeadzi Dominase State outside the jurisdiction of the said Ayeldu Tribunal, has been decreed the property of the defendant, on the ground of want of jurisdiction, irregularity, mistake and fraud.”

The case was heard by the Tribunal at Ayeldu, and judgment was delivered on the 10th December, 1934, in favour of the defendant, that Tribunal finding that the judgment of the 25th January, 1934, was not obtained by irregularity, mistake and fraud and that there was no want of jurisdiction.

On appeal to the Provincial Commissioner’s Court, the Provincial Commissioner, after rehearing the evidence, visiting the land in dispute and coming to the conclusion that it lay wholly within the Abeadzi State and not within the Kwamankese State, expressed the view that the judgment of the Ayeldu Tribunal of the 25th January, 1934, was a nullity and should have been declared so, and allowed the appeal.

It has been contended that the native Tribunal of Ayeldu had no power in a subsequent action to set aside its previous judgment of the 25th January, 1934, and that in consequence the Provincial Commissioner’s Court had no power on appeal to set it aside.

There is ample authority for the proposition that a judgment which has been obtained by fraud either in the Court, or of one or more of the parties, can be impeached by means of an action which may be brought without leave and which is analogous to the former Chancery suit to set aside a decree obtained by fraud (18 Hasbury, section 548), but we know of no authority for the proposition that a judgment given in respect of land may be subsequently impeached in another action on the ground that the land the subject-matter of the action lay in fact outside the jurisdiction of the Court. We have been referred by respondent’s Counsel to the case of the King against Urling, Judge of the Sheriffs’ Court in London, 92 English Reports, 817, where the King’s Bench was moved for a mandamus to compel the Judge to proceed to judgment in that Court. In our opinion that case affords no support for the respondent’s contention, but rather to the contrary, for the Court held that the inferior Judge could not grant a new trial, nor set aside a judgment regularly obtained, but he could set aside a judgment irregularly obtained. It is impossible for us to hold that the judgment that has been set aside was irregularly obtained merely because months after the judgment was obtained another Court comes to the conclusion that the land in dispute lay outside the jurisdiction of the native Tribunal of Ayeldu.

The jurisdiction of Courts is discussed in the first few paragraphs of 9 Halsbury, paragraph 8, which deals with the remedy for excess of jurisdiction, and is in the following terms :—

” If a Court exceeds its jurisdiction the aggrieved party, or even a stranger, may apply to the King’s Bench Division to exercise its ancient right of either prohibiting the judge of the inferior Court from proceeding further in the matter, or, if judgment has been given, of bringing up the record by certiorari in order that it may be quashed (n).”

In our opinion the action was misconceived. We accordingly allow the appeal with costs, which we assess at E32 7s. 6d., and set aside the judgment of the Provincial Commissioner and restore that of the native Tribunal of Ayeldu of the 1st November, 1934.

The respondent to pay the appellant’s taxed costs in the Provincial Commissioner’s Court.