1930
DIVISIONAL COURT (COLONIAL)
GHANA
CORAM
AI Generated Summary
Justice Gardiner Smith considered a suit brought by the administrators of the estate of Kofi Bodaa based on a 1914 agreement with Kweku Foli. Initially, he treated the matter as appropriate for referral under the Native Administration Ordinance. When plaintiffs sought review and produced the agreement, the judge concluded the named defendants were not parties to the contract and that plaintiffs should have sued Kweku Foli or his representatives. On a plain reading, which could not be varied by oral evidence, the agreement bound only the parties and specified successors. Finding no probable cause of action against the defendants, he determined neither retention nor referral was appropriate and exercised the Court’s inherent authority, not Orders 19 or 39, to dismiss the improper action. He distinguished Wright v. Prescot Urban Council as raising legal questions, whereas this suit was conclusive for the defendants on the face of the writ. The application was refused, with costs awarded to defendants.
The following ruling was delivered by Gardiner Smith, J. :-
When this case came before me on the question of retention under the Native Administration Ordinance, I held (for the reasons stated in my Order of 28th January, 1930) that it was a proper case for a Native Tribunal, and referred the parties thither. The plaintiffs then filed an affidavit exhibiting the agreement between Kofi Bodaa and Kweku Foli, dated 25th September, 1914, on which they sued as Administrators of the Estate of Kofi Bodaa deceased, and moved for a review of my Order. Upon hearing plaintiffs' Counsel and reading the said affidavit and agreement I came to the conclusion (for the reasons stated in my Order of 12th April 1930) that plaintiffs had sued the wrong parties. I therefore dismissed the action. Plaintiffs have moved for a review of this Order on the ground that I had no power to dismiss the suit at that stage.
I adhere to my opinion that this is a proper case for a Native Tribunal, and, had the plaintiffs not produced the agreement, I would have refused a review. Upon the plain construction of the agreement, however, (which no oral evidence is admissible to vary), the defendants were not parties thereto, and, as plaintiffs admitted that they were suing upon the agreement, they should have sued Kweku l'oli or his representatives.
The case came back to me upon a question of whether I should retain the suit or refer the parties to a Tribunal. I was of opinion that such a claim should be referred, but that this action was not brought against the proper parties and therefore the parties to
this action should not be referred. I could not retain the suit as I held that it was a proper case for a Tribunal, and, in my opinion, I could not refer the parties as no probable cause of action was disclosed against the defendants. I therefore dismissed the suit. In so doing, I was not acting under Order 19, nor under Order 39, but under the inherent power of the Court to dismiss improper actions. See Annual Practice (1928) pp. 419 and 245, and Supreme Court Rules Schedule 2, Order 3 r.5., 2nd paragraph.
The Native Administration Ordinance is a local law, and there are no English precedents as to what course the Court should take in such circumstances but, by analogy, I am of opinion that, in a position the effect of which was similar to that which exists here, the High Court of Justice in England would have an inherent power to dismiss the suit. I base this simply upon the fact that thi