Full Facts of the Case of Duke Kwesi Kuntu v Adontenhene Kweku Afilfa VII (1946)
The respondent (plaintiff below), acting as Adontenhene of Andoe, sued the appellant for trespass on land claimed to be part of his Stool territory. The trial was conducted by a single Land Court Judge without assessors.
Central to the dispute was the evidence that the respondent had administered a lawful oath to the tenants of a predecessor in title (Branuah), compelling them to enter into agreements to protect crops. The trial Judge considered this oath lawful and weighed it heavily in favor of the plaintiff.
The appellant argued that this raised an issue of native customary law, which the trial Judge could not decide alone under section 20B of the Courts Ordinance (as amended), which requires assessors when native law is involved.
Ababio II v. Kweku Nsemfoo(1947) Full Report L.M.S.R
Trial Court Decision.
The trial Judge:Awarded $25 damages to the respondent for trespass.Stated no new question of native customary law arose.He heavily relied on the lawful oath and the actions of the parties to reach judgment.
Appeal Grounds
The appellant challenged the trial on the following basis:By relying on the lawful oath, the trial Judge introduced a question of native customary law.
Section 20B of the Courts Ordinance mandates that a Land Judge must sit with assessors in cases involving native law.Therefore, the trial proceedings were null and void.
Judgment of the West African Court of Appeal in Duke Kwesi Kuntu v Adontenhene Kweku Afilfa VII (1946)
Delivered by M’Carthy, Ag. C.J.
Native Customary Law Involvement:
The evidence of the lawful oath clearly raised an issue of native customary law.Section 48(1) of the Native Administration Ordinance refers to the procedure of oath-taking, a practice unique to native custom.
Jurisdictional Error:
The trial Judge erred in ruling without assessors, even if he considered the question “not new.”Section 20B does not differentiate between new or old questions of native customary law.
Impact on the Trial Outcome:
The lawful oath evidence was significant in deciding the case.Removing this evidence would materially weaken the respondent’s case, making the outcome uncertain.Therefore, the trial was conducted ultra vires (beyond jurisdiction) and rendered null and void
Order of the Court:
Appeal allowed.New trial ordered before a Land Judge with assessors.Appellant awarded costs in the appellate and trial courts.
Abowaba v Adeshina (1946) Full Case Summary & Legal Analysis | L.M.S.R
Key Judicial Dicta Duke Kwesi Kuntu v Adontenhene Kweku Afilfa VII (1946)
“An oath is part of native custom, and the procedure in connection with it is unknown to those without knowledge of native custom. Its consideration requires assessors.” – M’Carthy, Ag. C.J.“
Section 20B does not distinguish between new and old questions of native customary law. Any issue of native law must be tried with assessors.” – M’Carthy, Ag. C.J.“
Exceeding jurisdiction in such cases cannot be overlooked, and renders proceedings null and void.” – Court
Cole v. Cole (1898)Full Case Summary & Legal Analysis | L.M.S.R
Case summary of Okwejiminor v. Gbakeji & Nigerian Bottling Co. Plc[2008] 5 NWLR (Pt. 1079)
Access more case report using the website search Bar.