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JELR 84172 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]



KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE. This is an appeal from the decision of the Chief Commissioner’s Court, Ashanti, dated 3rd April, 1940. Counsel have been heard upon Ground ‘A’ of the Grounds of Appeal and a very simply stated question of law is involved. The facts upon which that question of law depends are not matter of controversy and they may be shortly stated. The Plaintiff-Appellant caused a Writ of Summons to be issued in the Native Court claiming a declaration of title to certain land. The suit was originally against Chief Kofi Adarkwa for whom the present Defendant-Respondent has been substituted. The suit was transferred to the Chief Commissioner’s Court for hearing.

The case came before Captain J. R. Dickinson, Acting Chief Commissioner presiding over the Chief Commissioner’s Court on 15th May, 1936. Both parties were represented by Counsel and Counsel for the Defendant having pleaded res judicata to the Plaintiff’s claim the Commissioner’s Court recorded :- “Counsel are agreed that the question of res judicata should first be settled”.

The Court thereupon took evidence and heard Counsel, the evidence and the arguments of Counsel following it being confined entirely to the question of res judicata. After hearing the evidence and arguments the Court reserved Judgment on the point of res Judicata.

A considered judgment was delivered by the Court on 29th May, 1936, the Court deciding that the judgment relied upon by the Defendant as res judicata was a nullity, and as the judgment expressly put it “That disposes of the plea of “Res judicata.” The judgment went on as follows:-

The case is now before me but as the point of res judicata has been disposed of, it is properly cognisable by a Native Court and I therefore refer the parties to the competent Native Court and stop the further progress thereof before this Court, Costs to Yaw Anane assessed at £l “.

On a motion for review of that judgment the Court reviewed the judgment “ in so far as the said ruling refers the parties to the competent Native Court. The hearing of the case will therefore proceed in this Court”.

Apart from that review the judgment of the Commissioner’s Court stands, there having been no further review and no appeal against it.

The case came on again in the Commissioner’s Court on 13t April, 1940. The Court was constituted by a different Commissioner. The Defendant’s Counsel proceeded to raise afresh his same plea of res judicata which the Court had already disposed of Plaintiff’s Counsel objected that the Court had already given an interlocutory judgment on the point of res Judicata and that the matter was disposed of. The Court rejected the Plaintiff’s argument and proceeded to deal with the question of res judicata allover again, arriving at a conclusion and giving a judgment on the point exactly opposite to the Court’s still standing judgment of 29th May, 1936. There are now the two judgments of the same Court in opposite terms.

Against that decision the Plaintiff-Appellant has appealed to this Court and there seems to be no possible answer to his appeal.

This is not a question of estoppel by res judicata and not a question of giving in evidence a judgment in another case as res judicata. It is not a question of evidence at all. It is simply the blunt and inescapable truth that the Commissioner’s Court having given an interlocutory judgment in a particular suit that judgment stands unless in so far as it may be reviewed by the particular Judge who pronounced it or altered by a competent Appeal Court. No other Judge of the Provincial Commissioner’s Court can come along and say-either ex proprio motu or, on application of one of the parties;- “I do not agree with the interlocutory judgment already pronounced by this Court and I shall ignore it and compel the parties to litigate the same question afresh “,

The cases quoted by Respondent’s Counsel about another Judge continuing a half-heard enquiry by adopting evidence taken by his predecessor and hearing further evidence and giving judgment on both lots of evidence are, of course, entirely beside the point in this case.

The interlocutory judgment pronounced by the Commissioner's j Court (Captain Dickinson) still stands. There is nothing to stop execution being done on that judgment by the Plaintiff for his £1. costs, It cannot be suggested that the Plaintiff could not enforce the order for costs because the particular Judge who made it has gone to another Division, in our opinion such a suggestion would be nonsense. And equally absurd it seems to us that a Court’s solemn judgment on a definite issue-specifically by both parties referred to the Court for decision separately and distinctly from the rest of the case-should, by reason of the particular Judge's departure to another Division, become set aside tacitly and without the intervention of any tribunal having power to set it aside, This is quite different from a case where a competent Court of Appeal sets aside the judgments of a lower Court final or interlocutory and orders a complete new trial. One Commissioner sitting as the Commissioner’s Court has no jurisdiction whatever to order that a previous interlocutory judgment of the Commissioner’s Court pronounced by another Commissioner be set aside and the case start de novo. But, put in plain English, that is the contention for the Respondent.

The Defendant’s remedies, if dissatisfied with the judgment of Dickinson, Acting Assistant Chief Commissioner, were either to appeal as against an interlocutory judgment within the time provided ad hoc or to raise the matter on appeal after final judgment.

The Appellant therefore succeeds in his contention that the judgment of Dickinson, Acting Assistant Chief Commissioner, dated the 29th May, 1936, as reviewed on the 5th June, 1936, still stands as the decision of the Court below upon the question of res judicata and the ruling of Bewes, Acting Assistant Chief Commissioner, dated the 3rd April, 1940, purporting to make a decision in the opposite sense, is void. That latter ruling, including the order as to costs, is set aside.

However under the very wide powers this Court possesses under Rules 31 and 32 of the Rules of the Court and for the purpose of avoiding multiplicity of appeals, we have thought it desirable to consider the correctness of Dickinson, Acting Assistant Chief Commissioner’s judgment as to res judicata, and to hear full argument upon the point from Counsel.

By his judgment he decided that the judgment of the Court of the District Commissioner, Bekwai, which he regarded as the judgment which was relied upon to establish res judictlta was a nullity because the value of the land in dispute was in excess of the jurisdiction of that Court in land cases, and that consequently it did not operate as res judicata.

The short answer to this point submitted to us by Counsel for the Respondent in this Court is that the judgment of the District Commissioner, Bekwai, was appealed against to the Provincial Commissioner’s Court which upheld it and from that Court to the Court of the Chief Commissioner of Ashanti which also upheld it, that it is the judgment of the Chief Commissioner of Ashanti’s Court which he relies upon to establish res judicata, and that it is not competent to another Commissioner sitting in the Chief Commissioner of Ashanti's Court to pronounce that judgment a nullity.

Counsel for the Appellant was compelled to admit that he had no answer to this argument. We uphold it and we are clearly of opinion that the judgment of Dickinson, Acting Assistant Chief Commissioner, was wrong, and that the plea of res judicata must succeed.

The judgment of Dickinson, Acting Assistant Chief Commissioner, including the order as to costs, is set aside, and the case is remitted to the Court below with the direction that the Plaintiff’s claim be dismissed.

Having regard to all the circumstances of this case, it is ordered that each party shall bear his own costs of all the proceedings both in this Court and the Court below.

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