Foster-Suitton, P. This matter first came before the Court of Appeal in June, 1947,on appeal from a decision of the Court of the Chief Commissioner of Ashanti which was itself a judgment given on an appeal from a decision of the Asantehene’s “A” Court.
*Page 42 This Court declared the trial before the Asantehene’s “A” Court to be a nullity, and directed the Chief Commissioner’s Court, in the exercise of the powers it possessed as a Court of Appeal, to set aside the judgment of the Asantehene’s “A” Court and to hear the case de novo.
Pursuant to that direction the Chief Commissioner’s Court on the 21st July, 1947, made the following order:-
In accordance with the instructions issued by the West African Court of Appeal the judgment of the Asantehene’s “A” Court including Order as to joinder is hereby set aside.
“Hearing of the case de novo adjourned sine die.
By virtue of the provisions of section 7 of the Courts (Amendment) Ordinance, 1949, the case came before Jackson, J., then Judge of the Land Court, Kumasi, in February,1950, and he, having doubts as to his jurisdiction to deal with the matter, stated a case for the opinion of this Court.
No order was made on the Case Stated, but Blackall, P., commented as follows:-
“In this matter Jackson, J., reserved certain points of law for this Court arising out of a judgment of the West African Court of Appeal dated 2nd June, 1947, In that judgment the Court of Appeal directed that the Chief Commissioner in the exercise of his appellate powers should set aside the judgment of the Asantehene’s Court “A” and re-hear the case de novo, but they did not order the Writ to be set aside. That order in my opinion is quite unambiguous, and that being so, it is the duty of the Judge in the Court below to carry it out, as he has taken the place of the Chief Commissioner.”
The matter again came before Jackson, J., and on the 28th August, 1950, although he still held the view that he had no jurisdiction, out of deference to the view expressed by Blackall, P,. in the Court of Appeal when the Case Stated came before it, he made the following order:-
“the plaintiff shall file a plan and a statement of claim within two months and that the defendants shall file statements of defence within one month of the date of the service upon them of the statement of claim and a copy of the plan,” and it is against that order that the matter is again before this Court on appeal by the co-plaintiff, Nana Boakye Tromu II, Chene of Nkwanta, on behalf of the Stool of Nkwanta.
On behalf of the appellant it was argued, inter alia, that the Court of Appeal having declared that the trial before the Asantehene’s “A” Court was a nullity and the judgment of the Asantehene’s Court having been set aside by the Chief Commissioner’s Court there was nothing before the Land Court, Kumasi, which could be adjudicated upon, and that the latter Court, therefore, had no jurisdiction to deal with the matter, The case of Suso Avulete v, Dogbi Abortsi (1) was cited in support of this argument.
Counsel for the respondent argued that the mere setting aside of the judgment of the Asantehene’s “A” Court did not oust the jurisdiction of the Chief Commissioner’s Court or its successor in jurisdiction, the Land Court, to hear and determine the matter in their appellate jurisdiction.
Suso Avulete v, Dogbe A bortsi was a case falling to be dealt with under the provisions of section 50 of the Native Courts (Colony) Ordinance, 1944, and it came before this Court as a “Case Stated”. The question upon which the opinion of this Court was asked reads as follows:-
“When the Land Court, sitting in its appellate capacity, decides to re-hear a cause in whole under the provisions of section 50 of the Native Courts (Colony) Ordinance, 1944, should the Court before hearing the evidence first set aside the judgment of the Native Court from which the appeal is made ?” and the following passage occurs in the answer given by the Court to that question :-
“the Land Court may re-hear the cause if it chooses so to do, and may either reverse, vary or confirm the decision of the Court below. But if it were obliged to set aside the judgment of the Court below the exercise of these powers would be stultified. It would not be practicable to re-hear the cause in part for that would leave the remainder of the case unheard. Nor would it be possible for the Land Court to vary or confirm a decision of the Court below which had already been set aside for that decision would have ceased to exist. For the same reason it could not reverse it.” In my view there can be no doubt that this case was before the Chief Commissioner’s Court in its appellate jurisdiction, conferred by paragraph (b) of sub-section (1) of section 62 of the Courts Ordinance (Cap. 4), as it stood before it was repealed and replaced by section 5 of the Courts (Amendment) Ordinance, 1949. I am also of the opinion that the portion of the judgment in Suso Avulete v. Dogbi Abortsi, which I have quoted, applies with equal force to the case under consideration here.
It follows that, in my view, the judgment of the Asantehene’s “A” Court having been declared a nullity by this Court, and set aside by the Chief Commissioner’s Court, the latter Court became functus officio so far as the appeal was concerned, and there was then nothing pending before that Court for transfer to the Land Court, under the provisions of section 7 of the Courts (Amendment) Ordinance, 1949.
In my opinion, the doubts as to his jurisdiction, expressed by Jackson, J., were well founded, and I would, therefore, set aside the order which has been appealed against with costs.
The appellant to have his costs in the Court below, to be taxed. The costs of this appeal are fixed at £24 17s. 0d.
Coussey, J.A;. I concur. Manyo-Plange, J. I concur.
Appeal allowed: order of Land Court set aside.