PREMPEH vs. ADO [1961]DLHC10238

Date	1961-06-26
Suit No.	G L R 427 - 431
Citation No.	[1961]DLHC10238

ADUMUA-BOSSMAN J.

J. ARTHUR FOR PLAINTIFF-RESPONDENT.

ACQUAH FOR DEFENDANT-APPELLANT.

[1961]DLHC10238
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >PREMPEH<o:p></o:p>vs.<o:p></o:p>ADO<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>COUNSEL:<o:p></o:p>J. ARTHUR FOR PLAINTIFF-RESPONDENT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

ACQUAH FOR DEFENDANT-APPELLANT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JUDGMENT<o:p></o:p>

</div>&nbsp;ADUMUA-BOSSMAN
J.<o:p></o:p>&nbsp;The appeal is against the decision of the
magistrate of the Accra East Local Court in two cross-actions by the same
parties against each other for declaration of title in respect of the same
piece or parcel of land situate at Labadi which the magistrate tried
together.&nbsp; The first action was No.
239/60 in which the respondent in this appeal, as plaintiff, sued the appellant
before the court claiming that the latter had trespassed on a portion of an
area of land granted to him by the head and elders of the Abafum quarters of
Labadi by customary grant about seven years ago and subsequently confirmed by a
formal deed of conveyance dated the 30th December, 1959.<o:p></o:p>&nbsp;The second action was No. 252/60 in which the
appellant before this court, as plaintiff, sued the respondent claiming that
the latter had trespassed on a portion of an area of land granted to him also
by customary [p.429] grant as far back as 36 years ago by the elders of the
Labadi Presbyterian Mission.&nbsp; The Mission
had made their grant in exchange or substitution for a parcel of his family
land which the appellant had granted to them for the establishment of what is
now the Presbyterian Senior Boys' School, Labadi.&nbsp; The magistrate after hearing all the evidence
and inspecting the parcel of land, the subject-matter of the two actions, gave
judgment in favour of the respondent upholding his claim as plaintiff in the first
action and dismissing the claim against him as defendant in the second
action.&nbsp; Accordingly the appellant has
appealed against the magistrate's decision in both cases tried together.&nbsp; Counsel on his behalf has submitted, firstly,
that the magistrate had no jurisdiction to consolidate and try the two actions
together and that by doing so the resulting proceedings and judgment are a
nullity.&nbsp; As to that submission, it is
sufficient to say I do not find that the magistrate used the word
"consolidate" or the word "consolidation" in connection with
the order which he made, although it is true he ordered the two cases to be
"heard together." The material entry appearing in the record was the
following:<o:p></o:p>&nbsp;"Suit No. 239/60<o:p></o:p>&nbsp;E. A. A. Prempeh<o:p></o:p>&nbsp;v.<o:p></o:p>&nbsp;Martin Ashiamoh<o:p></o:p>&nbsp;Both parties present.<o:p></o:p>&nbsp;The defendant stated that he had instituted
another action against plaintiff about the same land by way of
counterclaim.&nbsp; The plaintiff admitted
having received civil summons suit No. 252/60 concerning this very land.<o:p></o:p>&nbsp;By Court: This case shall be heard together
with suit No. 252/60 as one case as evidence would be similar in the two
respective cases.&nbsp; Both cases set down
for hearing on the 23rd June, 1960".<o:p></o:p>&nbsp;If it is this order for hearing a claim and a
counterclaim together which it is contended the magistrate, functioning in
place of the old native court or tribunal, has no jurisdiction to make, then I
am afraid I cannot agree.&nbsp; By the
customary practice and procedure prevailing in the old native courts or
tribunals from the earliest times, when one person swore an oath to make a
claim and thereby initiate proceedings, and the other party swore in response
to counterclaim, the respective claims were not regarded and taken or treated
as two separate and distinct ones to be dealt with separately but on the
contrary were considered and accepted as one claim or dispute and dealt with as
such.&nbsp; In Yerenchi v. Akuffo,1 Griffith,
C.J. explains as follows: "swearing an oath upon a person is only the
ancient form of initiating legal proceedings.&nbsp;
If the oath is obeyed nothing happens, if disobeyed . . . the matter is
reported and the equivalent to a summons is issued."&nbsp; In the circumstances above explained, if
instead of obeying the oath sworn the other party should defy the party who
f</main>