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The following judgments were delivered :STROTHER-STEWART, J.
This is a case in which the plaintiff-respondent claims recovery of possession from the defendant-appellant of a piece or parcel of leasehold premises known as Plot No. 9 situate at Bimpeh Hill, Ejisu Road, Kumasi which plaintiff-respondent had bought at a public auction on the 4th day of May, 1935, when it had been put up for sale by Messrs. J. Lyons & Co. Ltd., Kumasi, as mortgagees.
*The first point raised in this case is whether the Divisional Court has jurisdiction to try such a case, and I think it goes to the root of the matter so far as this Court is concerned.
Section 17 (b) of the Courts Ordinance (Cap. 4) reads as follows :--
" 17. Notwithstanding anything in this Ordinance contained the Court shall not exercise jurisdiction
"(b) in Ashanti in any civil cause or matter subject to the provisions of section 35 of ·.the Native Courts (Ashanti) Ordinance, save and except in accordance with the proviso to such section, or in any cause or matter within the jurisdiction conferred on the Ashanti Chief Commissioner's Court by sections 62 and 64 of this Ordinance."
* But for the distinction between" possessing" and" exercising" jurisdiction ~e, Omanhene Nkyi Ababio v. Kwamin Ackumpong reported in 6 W.A.C.A.
Section 35 of the Native Courts (Ashanti) Ordinance (Cap. 80) reads as follows :-
" Whenever it shall appear to the Chief Commissioner's Court or the Divisional Court, or a :Magistrate's Court that any civil cause or matter before it is one properly cognizable by a Native Court and that a Native Court with jurisdiction to try such civil cause or matter has been established under the provisions of this Ordinance, such Chief Commissioner's Court or Divisional Court or Magistrate's Court as the case may be shall stop the further progress of such civil cause or matter before it and refer the parties to a competen1i Native Court as the case may be; and the Court shall thereupon order such costs as it shall deem fit.
"Provided always that the obligation as to stoppage and reference imposed upon the Chief Commissioner's Court and such Divisional Court or Magistrate's Court by this section shall not apply in the following cases :"(I) Where it is shown to the satisfaction of the Chief Commissioner's Court
or such Divisional Court or Magistrate's Court as the case may be that the competent Native Court is for the time being not functioning; or
"(2) If the cause or matter shall have been