Samuel A. B. Sampson V. Abraham Essell (1938)
LawGlobal Hub Judgment Report – West African Court of Appeal
Writ of possession issued in Provincial Commissioner’s Court—Motion to recall filed in that Court and still pending—Suit filed in Divisional Court to set aside same writ.
Held : Divisional Court had no jurisdiction to entertain the suit to set aside a writ of possession issued by the Court of the Provincial Commissioner since the plaintiff had another and more obvious remedy, and appeal allowed.
The facts are sufficiently set out in the judgment. K. A. &union for Appellant.
D. M. Abadoo for Respondent.
The following joint judgment was delivered :—
SINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBB, C.J., SIERRA LEONE.
In this case the defendant-appellant made an application
dated the 10th November, 1930 to the Court of the Provincial
Commissioner of the Central Province in the following form :—
” Please grant of Writ of Possession for the land Agissu, ” the subject of the Privy Council Judgment of 1928, being ” bounded on the north by River Kina, on the south by ” Charles Acquah’s land, on the east by Aban’s land and ” River Oki, and on the west by Ocra and Kobina Brati’s land, ” in Ayan Denkera State, Saltpond District.
” Judgment of His Majesty’s Judicial Committee of the CC Privy Council delivered on the 15th day of November, 1929, ” registered in the Supreme Court of the Gold Coast Colony ti by Order of His Honour Sir G. C. Deane, NT. sitting as a
single Judge of Appeal made on the 11th day of September,
1930.”
In pursuance of the application that Court issued the following writ :—
” To the Deputy Sheriff,
” Whereas lately, by the Judgment of the Privy Council. ” London, dated 15th November, 1929, was ordered to deliver ” to Abraham Essell of Ekuambassie possession of all that
” piece or parcel of land Agissu being bounded au the north ” by River Tibia, on the south by Charles Acquatt% land, on ” the east by Aban’s land and River Oki and on the west by ” Ocra and Kobina Baah’s land in Anyan Denkera State ” Saltpond District. Land situate at Ekuambassie.
” Judgment of Privy Council registered in Supreme ” Court, Gold Coast (W.A.C.A.) dated 11th ” September, 1930.
” These are therefore to command you, in His Majesty’s ” name, to cause the said Abraham Essell of Ekuambassie to ” have possession of the said land and premises with the ” appurtenances; and in what manner you have executed ” this writ, make appear to the Court.
” Dated at Cape Coast this 11th day of December, 1930.”
Thereupon the plaintiff-respondent’s predecessor, Rebecca Davis, moved that same Court for an order to amend the writ. That motion was heard on the 3rd February, 1931 and dismissed on the grounds that ” the Writ of possession in question has not ” been exhibited in the affidavit in support of the motion and ” none of the documents refered to in the argument of Counsel ” for the mover is before the Court either for consideration.”
The plaintiff-respondent’s Counsel then filed a further motion in the same Court for an order ” recalling and ” amending in terms of the Privy Council Judgment the writ of ” possession issued herein from this Honourable Court at the ” instance of the above-named appellant, and for stay of execution ” until the hearing and determination of this motion.” But as Rebecca Davis died on the 3rd March, 1931, that motion could not be proceeded with until a substitution was made.
On the 16th March, 1931, the motion was adjourned sine die. It is still pending.
No further steps were taken by the plaintiff-respondent either on that motion or otherwise until he caused to issue from the Divisional Court of the Central Province the writ in this suit dated the 22nd October, 1936, which is in the following form :—
” To Abraham Essell of Ekuambasie.
” You are hereby commanded in His Majesty’s name to ” attend before this Court at Cape Coast on Tuesday the 24th ” day of November, 1936, at 8.30 o’clock in the forenoon, ” then and there to answer a suit by plaintiff of Anamabo ” against you. The plaintiff claims that the writ of possession ” issued by the Court of the Honourable Commissioner of the ” Central Province and dated the 11th day of December, 1930, ” at the instance of Abraham Essell in the case entitled
” Rebecca Davis per J. E. Sampson—plaintiff-respondent” appellant-respondent versus Abraham Essell defendant” appellant-respondent-appellant be declared null and void ” and set aside on the ground that the said writ of possession ” was obtained by fraud and the said Court of the Honourable ” Commissioner of the Central Province acted without juris” diction in issuing the said writ of possession.”
The action was tried by Pearson, Acting J. who gave the following judgment :-
” This writ of possession was issued by the learned ” Deputy Commissioner of the Central Province without any ” judgment or order for possession or recovery having been ” given by any Court. The writ was therefore issued ultra ” tires or without jurisdiction and is null and void and must ” be set aside. J. A. C. Mansu v. Kwarnin Etsiaku, West ” African Court of Appeal 13th May, 1936. Court below to ” carry out.
” Judgment for plaintiff accordingly with costs to be ” taxed.”
Against this judgment the defendant now appeals to this Court, and his first ground of appeal is :—
” 1. That the Court had no jurisdiction to entertain the ” suit to set aside writ granted by a Court in a suit ” of which the said Court so granting the writ was ” properly seised.”
As this ground questions the jurisdiction of the Divisional Court to entertain the suit we have heard full argument upon it before considering the other grounds of appeal.
Now it is well established law that where a judgment has been obtained by fraud it can be set aside in a subsequent action brought for that purpose. (Cole v. Langford (1898) Q.B. 36). But such action would ordinarily be brought in this country in the same Court which gave the judgment sought to be impeached. It would only be where that Court had for some reason no jurisdiction to entertain such a suit that it might be possible to bring the suit in another Court so as to provide the aggrieved party with a remedy where otherwise he would have none. It is true that in the present case the Court of the Provincial Commissioner having no original jurisdiction could not entertain a fresh suit similar to the one brought in the Divisional Court. But inasmuch as it is not a judgment which it sought to get set aside but merely a writ of possession issued upon application by the defendant-appellant, the plaintiff -respondent had another and indeed a more obvious remedy than bringing a fresh action in a different Court, namely to move the Court which issued the writ to recall it. This,—ai’has been shown, he has already done and the motion is still penal*. Moreover, if he were to pursue that
remedy and meet with a refusal in the Provincial Commissioner’s Samuel Court he could appeal to this Court against that refusal in A. B. accordance with the provisions of section 86 of the Native gamPs” Administration (Colony) Ordinance (Cap. 76) for a refusal to recallv.
a writ of possession would clearly be a matter relating to possession Abraham of lands.Essen.
This being so, and the Divisional Court not being a Court of Kingdon, Appeal from the Court of a Provincial Commissioner in matters CJ., relating to possession of lands, we are of opinion that the Petrides, Divisional Court had no jurisdiction to entertain the suit to set C.J.,
aside the writ.and
Webb, C.J.
Our attention has been drawn to the unreported case of Elsie Nkumah v. J. T. Arthur in which in a case somewhat similar to the present Barton, J. sitting in the Divisional Court ruled on the 4th July, 1936 ” I have power to hear the present suit this ” being the only Court of competent jurisdiction to hear it ” and on the 8th September, 1936, gave judgment setting aside the writ of possession. We are not sitting on appeal in that case and it is not necessary to consider whether that case was rightly decided; we will only point out that the learned Judge seems to have overlooked the fact that the plaintiff in it had another remedy by motion in the Provincial Commissioner’s Court.
For the reasons given the appeal in the present case is allowed, the judgment .of the lower Court, including the order as to costs, is set aside, and it is ordered that the claim of the plaintiff-respondent do stand dismissed.
The appellant is awarded costs in this Court assessed at £22 7s. 2d. and in the Court below to be taxed.
