W. N. Hervie & Ors V. Nana Osam Wirisi III & Anor (1947)

LawGlobal Hub Judgment Report – West African Court of Appeal

Land—Jurisdiction of Land Division of Supreme Court and Native Courts—Claim for specific performance—Courts (Amendment) Ordinance, section 6—Native Courts (Colony) Ordinance, section 15 (b).

A claim for specific performance of a contract for sale of land is a suit relating to ownership of land.

Where the land the subject of the contract was to be conveyed by a deed of conveyance, this amounts to an agreement between the parties that the obligations under the contract should be regulated by English law, and therefore the jurisdiction of Native Courts is excluded by virtue of section 15 (b) of the Native Courts (Colony) Ordinance. That being so, the Land Division of the Supreme Court had jurisdiction to deal with the claim.

Case referred to :

(1) Adjare v. Annang, W:A.C.A., 3rd December, 1946 (unreported). Appeal from the Supreme Court of the Gold Coast.

Bossman for Appellants (plaintiffs below).

Abadoo for Respondent (defendant below).

The following judgment was delivered:

Verity, C.J. This is an appeal from a judgment of the Land Division of the Supreme Court dismissing an action for want of jurisdiction on the ground that there is no issue as to land, or that if there is such an issue the Land Court has no jurisdiction as there is a Native Court of competent jurisdiction.

The claim is one for specific performance of a contract for the sale of land and in the case of Adjare v. Annang (1) it was held that such a suit is a suit relating to the ownership of land within the meaning of section 6 of the Courts (Amendment) Ordinance, No. 23 of 1944.

As to the second point, it is provided by section 15 (b) of the Native Courts (Colony) Ordinance, No. 22 of 1944, that the Native Court ” shall not have jurisdiction to determine any cause wherein it shall appear either from express contract or from the nature of the transaction out of which such cause or matter may have arisen, that the parties agreed either expressly or by necessary implication that the obligations arising out of such transactions should be regulated exclusively by English law.”

In the present case the appellants claim specific performance of an agreement for the sale and conveyance of land and it is specifically pleaded that ” the land was to be granted and conveyed under and by virtue of a formal Deed of Conveyance unto and to the use of the plaintiffs “, in other words, that the parties had agreed that the obligations should be regulated by the English law which this allegation implies.

There were no formal pleadings, the respondent when before the Court did not plead that there was no agreement in the terms set out in the writ and no evidence was taken.

It is clear that this being a suit relating to the ownership of land the Land Court had jurisdiction unless there is a Native Court competent to try the cause or matter, and further that until it be shown that there was no such agreement, as is alleged by the writ, or that the terms of the agreement as so set out do not necessarily imply that it was agreed that the obligations thereunder should be regulated exclusively by English law, there is no Native Court competent to try the cause.

The learned Judge erred, therefore, in holding that the Land Court had no jurisdiction at a stage of the proceedings when it was not possible for him finally to determine this question.

The Appeal is therefore allowed and the case remitted to the Court below with directions that it should proceed with the cause and hear and determine the same unless it be shown that the jurisdiction appearing on the face of the writ has been ousted by the relevant statutes. The appellants to have their costs of appeal assessed at gs 14s. 6d.

Appeal allowed.