Windsor-Aubrey, j. In this case the learned trial Judge refused to make absolute an Order nisi for a writ of prohibition issued at the instance of Chief Kataboa, the substituted defendant, to prohibit the plaintiff, Sub-Chief Osei Bonsu from issuing a writ of possession for the land the subject-matter of the action.
It is essential in the first place to examine the proceedings in the Native Court and to determine the issues before that Court and the judgment thereon.
The claim of the plaintiff, Sub-Chief Osei Bonsu, is set out at page 15 of the record. The material part, so far as this application is concerned, is set out in paragraph 1 of the plaintiff's claim, which reads as follows:- “For having stated you have no boundary with me on the disputed land but with Dodi, place where marked by a German Official at Owukukuamba and with Ahamansu at Tentianyo, to know my historical origin why I have no land there.”
The judgment of the Native Court appears at pages 45 and 46 of the record and the relevant part of the judgment appears to be the following passage:- “Apessokubi Chief is guilty, the land properly belongs to Asatu. The proper boundary fixed in this judgment is the top of Oprana Hill from river Asuokoko south-ward to stream Mutabe and down the stream to an Ntombe tree’, and the road cleaning heap Asatu-Apessokubi road.”
It is to be noted that in the writ of summons there was no claim for possession and the judgment is declaratory only it describes a boundary and does not purport to define an area or to award any specific location to the plaintiff. The appellant’s counsel has admitted that the object of the litigation was to ascertain whether the tenants should pay tolls to the plaintiff or to the defendant. Possession was not claimed for the obvious reason that it was not sought, because the tenant occupiers had the right to possession.
The claim was for a declaration of title, and not only was the claim framed in that form but that was also the substance of the relief sought.
In Gledhill v. Hunter (1) it was held that an action to establish title to land, not claiming recovery of possession, is not an action for recovery of land.
Under Order 43, rule 1 of Schedule 3 to the Courts Ordinance a writ of possession can only be issued where there is a decree for land.
Here there was no decree for land but only a decree of declaration of title, consequently a writ of possession did not lie, and therefore the grant of a writ of possession was wrong and contrary to law.
However, the plaintiff-respondent’s counsel argues that even assuming the writ of possession was wrongly issued the remedy of the appellant lies by way of appeal.
Respondent’s counsel asserts that a writ of prohibition only lies where a Court has no jurisdiction at all and not where its jurisdiction has been wrongly exercised. He asserts that a Native Court, or any other Court, can in certain circumstances issue a writ of possession. If therefore the Native Court has wrongly issued such writ, it has acted in excess of its jurisdiction and not because of lack of jurisdiction. In other words, he alleges that, at the most, the Native Court misconceived or erroneously exercised its power to issue such writ, but that it has not exercised a power which it does not possess, if properly exercised. In support of this proposition he has cited the cases of Regina v. Justices of Kent (2) and Rex v. Electricity Commissions (3). In Short and Mellor, 2nd edition at page 253 it is' stated that writ lies- “where the Judge of the inferior Court has wrongfully exercised jurisdiction “. Again, at page 255 the following proposition is set out:-
“If he (a Judge of an inferior Court) assumes jurisdiction by a wrong decision on a point of law the Court will interfere.”
Having carefully considered the authorities cited on behalf of the respondent and the passages quoted from Short and Mellor there does not appear to be any conflict or difficulty in the interpretation of the law. The effect seems to be that prohibition only lies where there is lack of jurisdiction, and such lack may arise from total absence of a power or by the exercise of a power not exercisable in the circumstances of the particular case under consideration. A writ of possession only lies where there has been a decree for land. In this case there was no decree for land, consequently the Native Court had no jurisdiction to grant such writ, and the applicant-appellant was accordingly entitled to a writ of prohibition.
The decision of the Divisional Court is set aside and reversed and the application for a writ of prohibition is made absolute.
The applicant is awarded the costs of this appeal.
Foster-Sutton, P. I concur. Coussey, J.A. I concur.
Appeal allowed: writ of prohibition granted.