COOK vs. KUTSOATSI AND OTHERS [1960]DLHC135

Date	1960-04-14
Suit No.
Citation No.	[1960]DLHC135

ADUMUA BOSSMAN J.

SHORT FOR THE PLAINTIFF.

SWANNIKER FOR THE FIRST

THE THIRD DEFENDANT (THE AUCTIONEER).

SECOND DEFENDANT IN PERSON.

[1960]DLHC135
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													<main id="main" class="content" style="min-height: 60rem" >COOK <o:p></o:p>vs. <o:p></o:p>KUTSOATSI AND OTHERS<o:p></o:p>&nbsp;[HIGH
COURT CAPE COAST]<o:p></o:p>[1960] GLR 96<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
14TH APRIL, 1960.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SHORT FOR THE PLAINTIFF.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ADUMUA-BOSSMAN, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADUMUA-BOSSMAN, J.<o:p></o:p>(His
lordship referred to the facts and continued):<o:p></o:p>It is the
sale in the foregoing circumstances which plaintiff’s counsel contends was
illegal, because he maintains, the Keta Court had no jurisdiction in respect of
the action for debt, and its judgment and all subsequent proceedings were
accordingly a nullity. His argument based on section 14 (3) of Cap. 98, is that
the defendant was resident, or at any rate was in Saltpond, but not in Keta,
when the debt became payable at the time stipulated in the document, and
therefore it is the native court having jurisdiction over the Saltpond area
which was the court legally and properly entitled, or vested with jurisdiction,
to try the case.<o:p></o:p><o:p>&nbsp;</o:p>It is
perhaps unfortunate that such a highly technical expression or phrase as “the
cause of action arose” has not been defined or explained in the Native Court
Ordinance, Cap. 98, in a layman’s language or in terms simple enough for the
understanding of the type of persons, the large mass of simple illiterate
persons, whom the native courts mostly serve. It falls therefore to try and
ascertain or find out the meaning of the expression or phrase by reference to
the law dictionaries. Stroud’s Judicial Dictionary (3rd Ed. Vol. 1 p. 424)
defines “cause of action” as “the entire set of facts that gives rise to an
enforceable claim”; and Wharton’s Law Lexicon (14th Ed. p. 168) defines the
phrase as:—”A right to sue. All the facts which are necessary to establish the
plaintiff’s right to the remedy which he claims.”<o:p></o:p>Even in
the light of those definitions, it appears extremely doubtful whether the
contention of learned counsel for the plaintiff can be well-founded, when he
argues in effect that the falling due of the debt at the date stipulated for
payment and default in payment, constitutes the “arising of the cause of
action.”<o:p></o:p>The next
important enquiry is, in what circumstances is “a cause of action” said to
arise. To ascertain the right answer or explanation, it appears necessary to
refer to some of the English cases which have explained or interpreted the same
expression used in some English statutes conferring limited jurisdiction (as
does the Native Courts Ordinance, Cap. 98) on local courts.<o:p></o:p><o:p>&nbsp;</o:p>In the
case of Cooke v. Gill ((1873) L.R. 8 C.P. at p. 113) Bovil, C.J. said:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The Lord
Mayor’s Court is clearly a court of inferior jurisdiction, and is subject to
the general rules applicable to courts of that description, except in so far as
it is exempted therefrom by usage or by statute. In Chitty on Pleadings, 7th
ed. p. 287, the rule is thus laid down:— ‘In inferior courts, it continues
necessary, in addition to the statement of a country as a venue, to aver that
every material fact took place, “within the jurisdiction of the court” as, in
assumpsit, as well that the promise or contract was made as that the goods were
sold or the money had and received, etc. within the jurisdiction of the court;
and if the allegation be omitted, the declaration will be insufficient even
after verdict . . .’ And, although a general form of affidavit and declaration
were formerly allowed, yet, when it came to the evidence, it was always
necessary to prove that the gist and substance of the cause of action occurred
within the jurisdiction. Here, all the material facts which constitute the
cause of action occurred beyond the jurisdiction of the Mayor’s Court.
Independently, therefore, of the recent Act, that court had no jurisdiction
over this contract or the parties thereto.”<o:p></o:p>