ASARE v.

TEING AND ANOTHER

[1960] GLR 155

Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA

Date: 7TH JUNE, 1960
Before: OLLENNU J.

Practice—Jurisdiction—Appeals from local courts in land matters—Effect of Local Courts Act, 1958,
s. 53—Customary requirements of a gift of land.

HEADNOTES
In this action the plaintiff claimed ownership of a plot of land which she alleged was a gift inter vivos
made to her by her late father in accordance with customary law. She also claimed damages for
trespass. Her case was that her father in order to buy five ropes of land, had borrowed money, for
which she and the first defendant had to go into servitude with the lender for a number of years. This
was not disputed. She claimed however, that her father had given her one rope of the land to
recompense her for the period she had spent in servitude, and that she had allowed her father at his
request to occupy the land until his death twenty years later, and thereafter her father’s family for a
further four years to enable money to be raised to erect a memorial building to her father. The
defendants denied the gift.
The local trial court found for the plaintiff, but this decision was reversed on appeal by the local
appeal court. The plaintiff then appealed to the High Court.
At the hearing of the appeal the defendants (respondents) raised the preliminary point as to
jurisdiction, namely that as the Local Courts Act, 1958, had come into operation in the Eastern
Region of Ghana after the date of the local appeal court decision, the appeal lay only to a district
court, in this case to the District Magistrate’s Court, Accra. The plaintiff contended that the appeal
was pending in the Land Court prior to the date on which the Local Courts Act, 1958 came into force.
Held:
(1) the jurisdiction vested in the Lands Division of the High Court under the Courts Ordinance,
Cap. 4, section 24 was not taken away by the Local Courts Act, 1958;
(2) under the Local Courts Act, 1958, a district court replaced the local appeal court, as an
appellate court in land cases. As the Act did not create any other court than the Land Court to
which appeals from local appeal courts could be taken, the Land Court was the only court
having jurisdiction to hear this appeal which was pending before that court before the Local
Courts Act came into operation;
Obiter: a right of appeal lies to the Land Court in any land suit where a person is aggrieved by
the decision of a Native Court “A” but had not begun appeal proceedings prior to the coming
into operation of the Local Courts Act;

[p.156] of [1960] GLR 155

(3) the plaintiff had failed to prove the essential requirements of a valid gift in accordance with
customary law, which were, publicity, acceptance and placing the donee in possession.
Note: The Courts Ordinance, Cap. 4 and the Local Courts Act, 1958 were repealed by the Courts Act,
1960. The principles involved in this case are not, however, affected.

CASES REFERRED TO
(1) Saman v. Otsiwaba 2 W.A.L.R. 284;
(2) Colonial Sugar Refining Co. Ltd. v Irving [1905] A.C. 369.

NATURE OF PROCEEDINGS
APPEAL from a decision of the Local Court “A” (Appeal Section) of West Akim Abuakwa District
on October 29, 1959 reversing a decision of the Kade Local Court “B” on June 10, 1959 in favour of
the plaintiff in an action for declaration of ownership of land and damages for trespass.

COUNSEL
Kwenin for plaintiff.
Arthur for defendant.

JUDGMENT OF OLLENNU J.
The jurisdiction of the Land Court, a division of the High Court, both original and appellate, was
given by section 24 subsection (1) of the Courts Ordinance, Cap. 4, which reads:
“24. (1) There shall be a Division of the High Court, to be known as the Lands Division, which
shall within Ghana exercise jurisdiction in all causes and matters relating to the ownership,
possession or occupation of lands, specifically assigned to the Lands Division by this or
any other Ordinance.”

The causes and matters assigned to it for the exercise of its original jurisdiction are set out in
subsection (4) of the said section 24 which says:
“(4) Subject to the provisions of section 19 of this Ordinance a Land Court shall have exclusive
original jurisdiction to hear and determine any cause or matter relating to ownership, possession
or occupation of land …”

The said causes and matters are there set out.

Section 26 of the Ordinance shows that the “causes or matters” mentioned in section 24 (1) include
original cases and matters and appeals, for it says:
“26. Any party who is aggrieved by a decision of the Land Court exercising its original or any
appellate jurisdiction, may appeal to the Court of Appeal in like manner and subject to the like
conditions as if the appeal were an appeal to the Court of Appeal from a Divisional Court.”

One of the Ordinances which specially assign causes or matters relating to ownership, possession or
occupation of land to the Land Court for the exercise of its appellate jurisdiction is the Native Courts
Ordinance Cap. 98; another is the Local Courts Act now in force in this Region. The proviso to
section 46, and section 47 of the Native Courts (Southern Ghana) Ordinance Cap. 98 are relevant in
this connection. Section 47 of the Native Courts (Southern Ghana) Ordinance Cap. 98 provides that:
“Any party aggrieved by the decision or order of a Native Appeal Court or a grade A Native Court in a
land cause in which the subject

[p.157] of [1960] GLR 155

matter of the cause is of the value of fifty pounds or upwards may appeal to the Land Court.”

And section 49 subsection (2) of the Local Courts Act provides as follows:
“(2) Any party aggrieved by the decision of a Local Court in land and succession causes in which the
 subject matter exceeds the value of one hundred pounds may appeal to the District Court and
further to the High Court of Justice and to the Court of Appeal.”

It is true that by virtue of section 76, subsection (3) of the Local Courts Act, the Native Courts
(Southern Ghana) Ordinance, Cap. 98 ceased to have effect in the Eastern Region of Ghana from and
after the 23rd day of November, 1959, the day on which local courts were established in this Region
under section 3 of the Act. But in my opinion the repeal of the said Native Courts Ordinance does not
in any way affect the jurisdiction of this court or indeed of any other tribunal as a court of appeal
under the said Ordinance, except a native appeal court established under the repealed Ordinance,
which ceased to exist as a tribunal by reason of the repeal of the statute by which it was created.
Sections 46 and 47 of the Native Courts Ordinance which assign appeals in land causes and matters to
the Land Court for the exercise of the Land Court’s appellate jurisdiction, merely gave a right to party
aggrieved with a decision of a native court to appeal to the Land Court. They did not create the
appellate jurisdiction of the Land Court. Therefore, the Local Courts Act which repealed the Native
Courts Ordinance, cannot be construed retrospectively to take away the right to appeal which had
accrued to and become vested in a party prior to the date of the abolition of the native court. A statute
is always prospective, and cannot interfere with a right which is already in existence unless it contains
express words or unless there is the plainest implication to that effect. In the case of Saman v.
Otsiwaba (2 W.A.L.R. at p.287) the court applying the principle enunciated above, said:
“The long string of authorities draw a distinction between Acts affecting rights and Acts affecting the
procedure for exercising rights already acquired . . . I think, too, that a distinction must also be drawn
between a ‘ right ‘ and the jurisdiction of a court to entertain or adjudicate upon that ‘right’ … unless
there is a saving clause in the revocation Act itself.”

In the case of the Colonial Sugar Refining Co. Ltd. v. Irving [1905] A.C.369, it was held that:
“although the right of appeal from the Supreme Court of Queensland to His Majesty in Council given by
the Order in Council of June 30, 1860, has been taken away by the Australian Commonwealth Judiciary
Act, 1903, s.39, sub-s.2, and the only appeal therefrom now lies to the High Court of Australia, yet the
Act is not retrospective, and a right of appeal to the King in Council in a suit pending when the Act was
passed and decided by the Supreme Court afterwards was not taken away.”

The Australian Commonwealth Judiciary Act, 1903, did not and could not repeal the Order in Council
which gave the Privy Council its

[p.158] of [1960] GLR 155

jurisdiction; all it did was to take away the right to appeal to it; therefore the Privy Council had
jurisdiction to entertain an appeal by a person to whom a right to appeal had accrued prior to the
effective date of the Commonwealth Judiciary Act. In the course of the judgment of the Privy
Council, their Lordships said (at p.372):
“To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of
right is a very different thing from regulating procedure. In principle, their Lordships see no difference
between abolishing an appeal altogether and transferring the appeal to a new tribunal.”

The appellate jurisdiction of this court has not been taken away by the Local Courts Act; that
jurisdiction still belongs to this court. The Local Courts Act also gives to a person aggrieved by a
decision of a local court a right to appeal to this court, and even though as a second appeal court, yet
an appeal court still. On the other hand the Act makes no provision for a person aggrieved by a
decision of a native court ‘A’ or a native appeal court in a land suit, who had not commenced appeal
proceedings prior to the Act coming into force, to appeal to the district magistrate’s court, to which
court there was no right of appeal from a decision of a native court. The right of that person to appeal
would nevertheless remain, and not be affected by the new Act. The only court to which such an
aggrieved party can appeal in exercise of the right of appeal so vested in him, is the Land Court.
The only tribunals abolished by the Local Courts Act are the native appeal courts and therefore if no
provision is made in the Act for the continuance and determination of appeals pending before a native
appeal court prior to its abolition, such appeals would perish with the abolition of the native appeal
courts, before which they were pending, and the right though not taken away by the statute cannot be
exercised: hence the provision in section 16 of the Local Courts Act for the continuance of such
appeals. Section 16 (1) (b) of that Act provides as follows:
“(16) (1) Subject to the provisions of sub-section (2) of this section, any cause or matter begun and
pending in a Native Court immediately prior to the establishment of a Local Court area
under this Act in the area of jurisdiction of such Native Court shall be disposed of in the
following manner—
“(b) if it is a cause or matter on appeal the appeal shall lie to the appropriate District
Court and subject to the provisions of this Act the same appeal, if any, shall lie
therefrom as if the appeal had originally been instituted in the said District Court.”

Section 53 of the Act which is the section of the Local Courts Act dealing with appeals which,
immediately prior to the establishment of a local court were pending in any court, as distinct from
appeals pending in a native appeal court, simply repeats the principle of law laid down in the case of
Irving cited above. This is what it says:
“53. Any appeal proceedings in any cause or matter which were immediately prior to the establishment
of a Local Court under this Act pending before any Court from a Native Court may be continued

[p.159] of [1960] GLR 155

and concluded by such Court in like manner as if the appeal were from a Local Court and every
judgment, order, or sentence given, issued or passed, in such appeal proceedings may be enforced
in such manner and the same further appeal if any shall lie therefrom as if it were a judgment,
order or sentence in an appeal from a Local Court.”

The words “such court” must be interpreted to mean the court before which the appeal was pending,
provided it is a court which has not been abolished by the Act. In my opinion the words “in like
manner as if the appeal were from a Local Court” must be interpreted to include courts which are
exercising jurisdiction as second appeal courts. I am confirmed in this opinion by the provisions of
section 16 (1) (b) already referred to. The only pending appeals in which the district magistrate’s
court, the first court of appeal under the Act, is given jurisdiction are appeals which were pending in a
native appeal court. Thus the extent of the appellate jurisdiction given to the district magistrate’s court
under the Act is the same as that possessed by a native appeal court, but no more; it does not include
the jurisdiction which belongs to a higher appellate court. The present appeal affords a good example.
It has passed through a native appeal court, and is now before this court on further appeal. Since by
section 16 (1) (b) the appellate jurisdiction of the district magistrate’s court is equivalent to the
jurisdiction of a native appeal court, it will be ridiculous to argue that the same district magistrate’s
court can be a court of appeal from decisions given by a native appeal court, a tribunal of concurrent
jurisdiction. To interprete section 53 in the way counsel for the respondent suggests is to fall into the
fallacy of saying that the Act constitutes the district magistrate’s court a court of appeal from
decisions given by itself and by courts exercising or which exercised jurisdiction concurrent with its
own.
I hold therefore that since the Local Courts Act has not taken away the jurisdiction of this court as a
court of appeal from the decisions given in causes or matters commenced in a native court, and since
the said Act is prima facie prospective and does not either by express words or by the plainest
implication show the contrary, it cannot interfere with an existing right of appeal; and since the Act
did not create any court other than this court to hear appeals from decisions of a native appeal court or
of the district magistrate’s court which has assumed the appellate jurisdiction which belonged to the
native appeal court under the Native Courts Ordinance, and further since this is the only court vested
with competent jurisdiction to adjudicate upon the right which had accrued to the appellant prior to
the effective date of the Local Courts Act, I hold that this court has jurisdiction to hear the appeal.
It is for these reasons that I ruled against the preliminary objection taken by counsel for the
respondent.
The claim for damages for trespass and for declaration of ownership made by the plaintiff is based
upon an alleged gift inter vivos made to her in accordance with customary law by her late father.

[p.160] of [1960] GLR 155

(His lordship then referred to the evidence): To succeed on her claim the plaintiff must prove that she
obtained a valid gift from the father. The essentials of a valid gift made in accordance with customary
law are publicity, acceptance, and placing the donee in possession. The way to give publicity to a gift
of land is to make the gift in the presence of witnesses, particularly members of the family of the
donor who would succeed to the property upon the donor’s death intestate; and the acceptance must
be evidenced by the presentation of “drink” or some small amount of money to the donor, part of
which is served to or shared among the witnesses to the transaction.
Possession is given by taking the donee to the land, owners of the adjoining lands having been given
previous information to stand on their boundaries and the donee is taken round the said boundaries.
In the absence, however, of publicity of the gift at the moment of its making, possession and
occupation by the donee and the open exercise by him of rights over the land, which is incapable of
any other explanation except that the person in such possession is the owner, will be sufficient
evidence and publication of a gift.
The plaintiff led no evidence to prove any of these essential requirements of a valid gift made in
accordance with customary law.

DECISION
Appeal dismissed.