KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA J.JEONE. (Read by the President). Kwadjo Tweneboa, the claimant-appellant-appellant-Respondent (hereinafter called the respondent.) caused to isssue in the Tribunal of Ayokohene, New Juaben an interpleader summons calling upon Akua Adai or Akosua Adei, plaintiff-respondent- respondent-appellant, the judgment-creditor (hereinafter called the appellant) to show cause why the land with cocoa farm thereon situate, lying and being at Antwafiri near Oyoko which has by as. decree of the Tribunal at the instance of the said Akua Adai been advertised for sale for the execution of the debt due her by the others. judgment-debtors while it is a family property.
The Tribunal gave judgment in favour of the appellant and ordered the disputed farm to be sold. Against that judgment the respondent appealed to the Tribunal of the Omanhene of New Juaben, which heard the appeal on its merits and dismissed it. Thereupon the respondent appealed further to the court of the Provincial Commissioner., Eastern Province, in which he raised for the first. time the question of the jurisdiction of the tribunal of Ayokohene over the suit, contending in grounds l and 2 of his supplementary grounds of appeal-
“1. That the land in dispute is situated in Oyoko in the New “Juaben District and the amounts on the writ £12 was borrowed at “Oyoko and the necessary document (Promissory Note) 'vas also “prepared at Oyoko (£12) amount claimed is within the jurisdiction “of the Tribunal of Ohene of Oyoko, New Juaben. “2. That the Ayokohene’s Tribunal, Koforidua has no jurisdic- “tion to have tried this case and therefore the whole proceedings before “it are vitiated for want of jurisdiction as ‘where there is no jurisdic- “tion proceedings are void .”
The Acting Deputy Provincial Commissioner, Eastern Province, who constituted the Court, allowed the appeal and ordered both parties to pay their own costs. He held “the loan “was raised at Oyoko. The land in dispute is lying and situated “at Oyoko, a village five and a half miles away from Koforidua; “the Chief of this town has a Tribunal under Schedule 2 Part “B’ of the Native Administration Ordinance with competent “jurisdiction to hear this case. The Ayokohene is one of the “Divisional Chiefs in the Koforidua town and his jurisdiction “does not extend to Oyoko. “The defendant-respondent admits that the land in dispute “is lying at the village of Oyoko. Question of jurisdiction can “be raised at any stage of the proceedings. This being so, the “proceedings before the Ayokohene and Omanhene’s Tribunal are “a nullity. The Omanhene should have acted under section 74 of “the, Native Administration Ordinance when the question of “jurisdiction arose.”
Against that decision the appellant has appealed to this Court. The jurisdiction of a Divisional Chief’s Tribunal is derived from section 49 of the Native, Administration (Colony) Ordinance (Cap. 76) the relevant parts of which read as follows:- “(1) A Divisional Chief’s Tribunal shall have and may “exercise within the Division of such Divisional Chief civil “jurisdiction for the hearing and determination of the causes “and matters hereinafter mentioned in which all parties are “natives and the defendant was at the time when the cause of
“action arose within such Division, or in which any party not “ a native consents in writing to his case being tried by such “Divisional Chief’s Tribunal. “(2) The causes and matters hereinabove in this section “referred to are the following:- “So far as is sanctioned by native customary law, “suits relating to the ownership, possession, or “occupation of lands situated within the Division.” In section 2 of that Ordinance “Tribunal” is defined to mean and include “Divisional Chief’s Tribunal formed by the “Divisional Chief or his representative sitting with his Chiefs, “Headmen, Linguists, and Councillors (or some of them) in “accordance with native customary law”. And “Divisional “Chief” is defined to mean and include “Ohene (Ohin), “Opakanni, Manche, Wetso Manche, Fio, Dufia, Odefe, Awadada, “Tronua and Asafohenega being a person elected and installed “in accordance with native customary law, and subordinate “directly to a. Paramount Chief or to a Paramount Chief through “another Divisional Chief of the State; and being also the holder “of a position included in Parts A or B of Schedule 2.” Reference to Schedule 2 shows that included in Part A is the following: - “State Division Headquarters Position “New Juaben Gyase Koforidua Ayokohene” . and in Part B:- “State Division Headquarters Position “ New Juaben Gyase Oyoko Ohene”.
It follows from this that the Tribunal of the Ayokohene has jurisdiction throughout the Gyase Division; the territorial limit is fixed by the words “within the Division” in section 49 (1) already quoted Counsel for the respondent was unable to point to any other territorial restriction or to show any authority for the territorial limitation placed upon the jurisdiction of the Tribunal of the Ayokohene by the, Provincial Commissioner’s Court. It may be, and indeed it appears to be the case, that the Tribunal of the Oyokohene has concurrent jurisdiction throughout the Division; and if this is not the intention it is a matter which should receive the attention of the legislation.
For these reasons the appeal is allowed, the judgment of the Provincial Commissioner’s Court, including the order as to Court, is set aside, and the case is remitted to the Provincial Commissioner’s Court for the appeal of the respondent to that Court to be heard upon the original grounds of appeal filed in that Court. The appellant is awarded costs in this Court assessed at £31 10s 0d and costs of the appeal proceedings up to date in the Provincial Commissioner’s Court to be taxed. The costs of future proceedings in the Provincial Commissioner’ Court will be in the discretion of that Court at the further hearing of the appeal.