NANA OBOSU ENU V. J. B. BINEY

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND BANNERMAN, J. In this case the learned trial Judge prefaced his judgment by saying that the plaintiffs claim is as follows: -

The plaintiffs, each as representing his Division, jointly “claim (1) a declaration (a) that section 75 of the Courts “Ordinance is ultra vires (b) that the gazetting of the “defendant as an Omanhin elected and installed in accordance “with Native Custom is ultra vires and (c) that the alleged “election and installation of the defendant as Omanhin of “Nkusukum is contrary to the customary law of the State of “Nkusukum; (2) an injunction restraining the defendant, “gazetted as Omanhin of Nkusukum, under the Stool name “of Essandoh IV from exercising any of the functions of the “Paramount Stool of Nkusukum until he has been elected and “installed in accordance with the customary law of the State “of Nkusukum”

In doing so he overlooked the fact that there had been substituted therefore, by leave of the Court and embodied in the Statement of Claim, the following:- “And the plaintiffs therefore claim “(1) A declaration “(a) that the gazetting of the defendant as a “Paramount Chief is not in accordance with “the Native Administration Ordinance, the “election and installation of the defendant “having in fact proceeded both contrary to “native law and contrary to the Native Administration Ordinance. “(b) that the defendant is not entitled either by “native law or under the Native Administra- “tion Ordinance to exercise any of the powers “of a Paramount Chief in the Sub-Divisions of Upper Town, Saltpond, Low Town, Saltpond, “Biriwa, and Nkusukum-Amansi, in the State “of Nkusukum.

(2) An injunction to restrain the defendant his “agents or servants from doing any act purporting “to be in exercise of the powers of Paramount Chief “either by native law or under the Native “Administration Ordinance”. The appellants have made this oversight a ground of appeal (No.7) but we think that it makes no substantial difference to the matters under consideration.

The defendant having pleaded that the Supreme Court had no jurisdiction to try the action and the Court below having decided, on the pleading, that it had no jurisdiction, the question this Court has to decide is whether the Court below was right to uphold the plea. The correctness of the decision is challenged in grounds 1-6 of the Grounds of Appeal.

This is by no means the first time that the effect of legislation purporting to deny to the Supreme Court jurisdiction in certain matters has been challenged. In l915 the Privy Council upheld the validity and intention of such legislation in the case of Thomas Harrison Odonkor v. Konor Emmanuel Mate Kole and others (P.C. 1874 1928, p.38), In delivering the judgment of the Board in that case lord Dunedin said- By section 4 (1) of the Chief Ordinance’s, 1904, It is

“Provided:- “Any head chief or chief deposed from his office in “accordance with native custom, and whose “deposition shall be confirmed by the Governor by “writing under his hand, shall be deemed in all “Courts of the Colony to have been lawfully “deposed . Their Lordship have no doubt that the Judge of first “instance was entitled to dismiss this suit upon production “of a defence which was instantly verified, and which was a “complete answer to the suit. “The plaintiff's counsel put his argument under two “Heads: He said, first, that the plaintiff had been “irregularly deposited, and craved to be allowed to prove “this allegation , Now, the plaintiff could only be “irregularly deposed if he was not deposed according to “native custom, and if there were no sections of the statute “as already and after quoted, an averment that he was not “deposed according to native custom would be relevant to go to proof. Section 4 (1) has been already quoted. Section “7 of the same Ordinance is as follows;- “A statement signed by the Secretary for Native Affairs , “declaring that any head chief or chief has been “elected and installed or deposed shall, without “proof of signature, be conclusive evidence that “the election and installation or deposition of such “head chief or chief, as the case may be, was in “accordance with native custom and has been “confirmed by the Governor. “In other words the legislature has thought fit to take “away from the Court any power of enquiry into such a “matter. If the plaintiff was irregularly deposed his remedy “lay in opposing the confirmation before the Governor.”

The question was again raised in the case of Nana Kojo Nkum and others v. Ahinaku Bonso (F .C. 1926-29, p.165). The head note to the report of that case in the Full Court reads: “The plaintiff claimed all injunction restraining the “defendant from occupying certain premises in his pretended “capacity of Omanhin of Gomoa Assin. The defendant “produce a certificate Secretary for Native Affairs “that he was the Omanhin of Gomoa Assin, and the Court “non-suited the plaintiff.”

“Held, following Odonko v. Mate Kole, P.C. 1874-1928, “p. 37, that the Court was right in stopping the case, but “that the suit should have been dismissed” , and SMYLY, C .,J ., in his judgment said :- “In my opinion, the trial Judge was right in stopping “the further hearing of the suit, on the production of the “certificate of the Secretary for Native Affairs, as, on the “election and installing of the Omanhin, any supposed right “the plaintiffs may have had to sue, on behalf of themselves “and the stool, terminated, and the Courts no longer have “jurisdiction to enter into the question of the validity of any “such election or instoolment, under Caput 80 of our “Ordinances” . Again a decision more directly upon the present point was given in 1934 by DEANE, C.J., in the Divisional Court at Accra in the case of In re State Council of Wasan and Kwamina Enimil (Div. Court, 1931-37, p. 61). The headnote to that case reads:- “This was an application for a rule nisi to issue to the “State Council of Wassaw Fiase and /or the Governor of the “Gold Coast Colony to show cause why a writ of certiorari “ should not issue to remove into the Divisional Court, Accra, “the order of the Governor and the decision of the State “Council in the matter of the election and installation of one “Kwamina Enimil v. as Omanhene of Wassaw Fiase. “Held, that, as under section 26 of the Native Administration Ordinance, the Court had no jurisdiction to entertain “any cause or matter relating to the election, installation. “deposition or abdication of any paramount chief, the writ “did not lie” .

Section 26 of the Native Administration Ordinance has now been replaced by section 75 of the Courts Ordinance the section with which we are now principally concerned, so that it will be seen that the question then raised was practically the same as the one now raised, though in it different form. We respectfully concur with the decisions given in those three cases and with the dicta quoted.

Section 75 (1) of the Courts Ordinance (Cap. 4) reads:- “The Supreme Court and Magistrates’ Courts shall not “have jurisdiction to entertain either as of first instance or “on appeal any civil cause or civil matter instituted for- “the trial of any question relating to the election, “installation, deposition, or abdication of any “paramount chief, head chief, or chief;” Section 26 of the Native Administration Ordinance (Cap. 76) is in the following terms: - “Every election and installation, and every deposition, “abdication, and death of a paramount chief or Divisional “chief shall as soon as possible be published in the Gazette, “and such publication shall be conclusive evidence for all “purposes of any such fact so published”.

The first point this Court has to decide is whether the suit was one instituted for the trial of any question relating to the election or installation of any paramount chief. The statement of claim, looked at as a whole, leaves us in no doubt that the suit was one instituted to determine whether the defendant had been properly elected and installed as paramount chief of the state of Nkusukum. Moreover the admission by appellants’ Counsel to us at the end of the hearing of the appeal, “We admit the election but say it has “no effect in the Division we represent” appears to us to demonstrate the point conclusively.

We therefore come to the conclusion that the suit fell within the purview of section 75 (1) of the Courts Ordinance, and in our opinion the Supreme Court was precluded by reason of the provisions of that section and of section 26 of the Native Administration Ordinance from enquiring into the question whether the election was in accordance with native customary law or the provisions of the Native Administration Ordinance.

But the appellant has contended that the objection to the jurisdiction cannot be sustained because it has not been shown what other Court had jurisdiction to try the suit (Ground 1 of the Grounds of Appeal). In support of his contention plaintiff’s Counsel relied upon the judgments in the cases of Sodor and Man (Bishop of) v. Earl of Derby (28 E.R. 217) and Nabob of the Carnatic v. East India Co. (30 E.R. 391). In the first, heard in 1751, the Lord Chancellor said:- “I would not be understood, when lover-ruled the plea “of the Duke of Athol, to have over-ruled it on affirmance “of the general jurisdiction of this country to try and “determine the title to the Isle of Man or any such feudatory “dominion, but merely on this; the plea was to the “jurisdiction without averring to what court the jurisdiction “belonged; and the rule of law is that in a plea to Jurisdiction like a plea in abatement, where it is to a court “of general jurisdiction (1 Ves. Sen. 203), you must also

“show where the jurisdiction vests, as well as negatively that “it is not there; but if it is in an inferior court, you need only “plead thereto, and not show where it is.” And in the second, tried in 1791, the Lord Chancellor said:- “It is truly observed that it is impossible to plead to the “jurisdiction of any particular court without giving another “remedy in some other court”.

The reason for this rule of law is given in 8 Halsbury (2nd Edition) paragraph 1173 at p. 530 “An objection to the “Jurisdiction of one of the superior courts of general jurisdiction “must show what other court has jurisdiction, so as to make it “clear that the, exercise by the superior court of its general “jurisdiction is unnecessary” . It is clear from this that for the rule to have any applicability the superior court must also be a court of general jurisdiction and must itself possess the necessary jurisdiction to deal with the matter if there is no other court possessing that jurisdiction. When, as in the present cue, the , jurisdiction is expressly withheld from the superior court by statute, the rule in our opinion, does not apply.

The Supreme Court, although a superior Court of Record (see section 14 of the Courts Ordinance (Cap. 4) is not a Court of general jurisdiction, for that very section, which confers upon the Court its powers, limits them with the restrictive words “subject as in this Ordinance mentioned” , and one of the sections to which those words refer is obviously section 75 already quoted. The contention of appellants’ Counsel therefore fails, and, in any case, we should find it quite impossible to hold that the effect of a defendant pleading wrongly though we do not think that in this case the defendant did plead wrongly), i.e. Pleading to the jurisdiction, instead of pleading in bar, would be to confer upon a court jurisdiction which the Ordinance creating the court. Expressly withholds.

There ate only two other points that need be mentioned. The first is Ground 6 of the Grounds of appeal which reads: “Because “the learned judge failed to consider the case of “Demodhar v. “Deoram”. As to this it is only necessary to say that we have examined the case which is reported at (1875-6) 1 A.C. 332 and cannot see that it has any bearing at all on the question in issue.

The second is the capacity of the legislature to enact section 75 (1) of the Courts Ordinance. Although not one of the grounds of appeal, it has been contended by plaintiffs that that section is ultra vires As to this we are of opinion that the legislature of the Gold Coast had power to confer jurisdiction on the Supreme Court and to limit that jurisdiction in the way it purported to do in section 75 of the Courts Ordinance.

In our opinion the trial Judge was right in holding that hp had no jurisdiction to entertain this action.

The appeal is dismissed with costs assessed at £34 6s.