Courts – Jurisdiction – Objection to, – Application to Court of Appeal for stay of execution pending appeal – Applicant raising for the first time jurisdiction of court below – Objection ought to have been raised in lower court – Court of Appeal not to entertain objection.

Practice and Procedure – Appeal – Stay of execution – Applicant appealing against judgment in default of defence in land suit – Applicant applying to Court of Appeal for stay of execution – Application raising jurisdictional issue in court below but not disclosing interest in disputed property nor disputing respondents’ interest – Application to be declined.

The defendants were sued for declaration of title, recovery of possession and an order for perpetual injunction in respect of disputed property. Judgment was entered against the 1st defendant in default of defence and he appealed to the Court of Appeal on the ground that the trial court’s jurisdiction had been ousted by virtue of section 12 of the Land Title Registration Law 1986 (PNDCL 152). In his affidavit in support of the application for stay of execution of the judgment pending appeal, the applicant raised matters on the merits of the case and the jurisdiction of the trial court.

Held: The issue of jurisdiction ought to have been raised in the statement of defence to enable the trial judge to pronounce upon it. The omission of the 1st defendant to raise the issue in his pleading or by motion denied the lower court the opportunity to pronounce on the issue. Moreover the 1st defendant neither filed a defence disclosing his interest in the property nor did he deny the plaintiff’s claim to ownership. If the defendants’ contention on jurisdiction is upheld on appeal they would no doubt be awarded costs to compensate them for being brought before the wrong forum. The application would accordingly be dismissed.

APPLICATION for stay of execution of default judgment by High Court.

ESSIEM JA. This is an application by the 1st defendant-appellant “for a stay of execution of the judgment in default of defence herein pending the hearing and determination of either or both interlocutory appeals herein filed on 22 December 1992 and 11 February 1993 respectively.” The claim before the court was for:

“(1) A declaration of title to plots Nos 86 and 87, Amisa Gon, Dansoman, Accra, with all the buildings thereon, on which the Kaikan (centre for worship) of the plaintiff is situated.

(2) Recovery of possession of the disputed property.

(3) Recall and cancellation of any document affecting the land, prepared by the 2nd defendant purporting to vest the property in the 1st defendant or any other person.

(4) An order of perpetual injunction restraining the 1st defendant his agents, servants, workmen or assigns or any associations or bodies formed by him from in any way interfering with the property in dispute.”

Although the 1st defendant entered appearance, he failed or neglected to file a statement of defence. The plaintiff therefore applied to the court below for judgment in default of defence and same was granted. The applicant then brought an appeal to this court on the ground that the court below had no jurisdiction to deal with the matter because the jurisdiction of the court in land matters had been taken away by section 12 of the Land Title Registration Law 1986 (PNDCL 152). That section of the Law provides:

“12(1) No action concerning any land or interest therein in a registration district shall be commenced in any court until the procedures for settling disputes under the Law have been exhausted.

(2) Where at the time of the publication of a notice under section 11 of this Law, an action or proceeding concerning any land or interest therein in a registration district referred to in the notice is pending in any court, any claim under law in respect of the same land or interest shall be noted by the Land Registrar but no further action shall be taken by him on such claim until the matter is determined by the court.”

Whether or not the court below has jurisdiction to deal with the case now on appeal is yet to be determined by the Court of Appeal. The appellant-applicant does not deny that he has defaulted in filing his defence to the action. By paragraph 11 of the defendant-applicant’s affidavit he deposes that the appeal will deal with:

(a) the jurisdiction of the court below to entertain the plaintiff’s suit;

(b) the issue whether he had been properly sued; and

(c) whether the plaintiffs had title and hence locus standi.

In my humble opinion, these are matters which can be raised in a statement of defence and which would give the court below the chance to pronounce on the issues one way or the other. Order 21 rule 6 of the High Court (Civil Procedure) Rules (LN 140A) provides:

“6. Where a defendant has entered an appearance, he shall deliver his defence within fourteen days from time limited for appearance or from the delivery of the statement of claim, whichever shall be later, unless such time is extended by consent in writing or by the Court or Judge¼”

Then Order 25 rules 2 and 3 provide:

(2) Any party shall be entitled to raise by his pleadings any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the Court or a Judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

(3) If, in the opinion of the Court or a Judge, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the Court or Judge may thereupon dismiss the action or make such other order therein as may be just.”

Order 52 rule 1 also provides:

“Where by these rules any application is authorised to be made to the Court or a Judge, such application if made to a Judge in Court, shall be made by motion.”

There is no evidence before this court that the applicant either raised in his pleadings the issue of jurisdiction or applied by motion to the court to challenge the jurisdiction of the court below. The court below was thus denied the opportunity to pronounce on the issue of jurisdiction in compliance with the rules of court.

At least in my opinion the issue of jurisdiction will be the central issue in the appeal now pending before the court. Although the defendant did not file a defence was the court right in giving judgment in default of defence, although the alleged want of jurisdiction was brought to its notice?

An important question is what interest the applicant has in the properties in the plaintiff’s claim. The applicant’s affidavit does not disclose that. The arguments before us on his behalf challenges the jurisdiction of the court below. The applicant’s affidavit, in my humble view, does not deny the claim to ownership of the place of worship by the plaintiffs-respondents. Paragraphs 10 and 11 of the

affidavit in opposition are as follows: