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Courts – Jurisdiction – Land
Title – Circumstances in which
jurisdiction of court ousted –
Land Title Registration Law 1986
(PNDCL 152) s 12.
Courts – Jurisdiction – Land
Title – Plaintiffs’ claims
within jurisdiction of court –
Defendant’s claims outside
jurisdiction of court – Court to
proceed with action – Land Title
Registration Law 1986 (PNDCL
152) s 12.
The plaintiffs sued the
defendant for a declaration that
the disputed house was family
property and the purported sale
to the defendant was void. The
defendant denied the plaintiffs’
claim and counterclaimed for a
declaration of title to the
disputed house and an order of
perpetual injunction to restrain
the plaintiffs from interfering
with his enjoyment of the
property. He then applied to
dismiss the plaintiffs’ action
on the ground that the location
of the disputed property had
been declared a registration
district pursuant to the Land
Title Registration Law 1986 (PNDCL
152) and therefore the plaintiff
should have proceeded to the
Land Title Adjudication
Committee and not the High
Court. The trial judge dismissed
the application and the
defendant appealed arguing that
since part of the plaintiffs’
claim concerned land situate in
a registration district, the
High Court had no jurisdiction.
Held:
(1) PNDCL 152 did not oust the
jurisdiction of the court in all
cases. Section 11 of the Law
provided that upon the
declaration of a registration
district, the Chief Registrar of
Lands should, within fourteen
days, issue a notice specifying
the registration district and
also require any proprietor of
land or any interest holder in
any land within the registration
district to submit a claim in
the specified manner. There was
no evidence before the court or
in the pleadings that either the
Chief Registrar of Lands or the
appellant had complied with
section 11 of PNDCL 152. It was
essential for the party
objecting to the jurisdiction of
the court to plead facts that
oust the court's jurisdiction in
terms of Law 152. The trial
judge was therefore right in
holding that the jurisdiction of
the court was not ousted.
Kasser v Raziel Construction Ltd
(No 2) [1992-93] GBR 513
SC applied.
(2) The declaratory orders
sought by the plaintiff fell
outside the jurisdiction of the
adjudicating committee, while
the injunction counterclaimed
for also fell outside the
jurisdiction of the committee.
The defendant’s counterclaim for
a declaration of title fell
outside the jurisdiction of the
High Court. In such situation
the plaintiff could proceed with
his action; the defendant was at
liberty to prosecute before the
committee such of his claims
that fell within its
jurisdiction. The objection to
the jurisdiction of the High
Court was rightly dismissed.
Cases referred to:
Kasser v Raziel Construction Ltd
(No 2) [1992-93] GBR 513
SC.
Rep v Dugbaza VIII, ex parte
National House of Chiefs
[1989-90] 2 GLR 226.
Rep v Asankare Traditional
Council, ex parte Afrakoma
[1989-90] 2 GLR 592.
Rep v Court of Appeal, ex parte
Ekuntan II
[1989-90] 2 GLR 169 SC.
APPEAL against the ruling of the
High Court.
Afari Yeboah
for the appellant.
No appearance by or for the
respondents.
ESSIEM JA.
The claim before the High Court
was for orders that:
“1. On the death intestate of
Ruth Sackiley Sackey on 5 August
1962, house No C345/4 became
family property.
2. The late Emmanuel Tetteh
Addy, as customary successor,
has no power to sell the family
property without the consent of
the family.
3. The letters of administration
obtained on 17 July 1990 by late
Emmanuel Tetteh Addy was void.
4. The alleged transfer to the
defendant of house No C345/4 by
late Emmanuel Tetteh Addy be
rescinded as being void.”
Reading through the statement of
claim and the statement of
defence, one is left in no doubt
that this suit involves
succession and the issue whether
house No C345/4 is family
property.
The statement of claim also
alleged fraud with particulars.
Before summons for directions
could be taken, the defendant,
now the appellant before this
court, moved the court for an
order to dismiss the plaintiffs’
claim for want of jurisdiction.
It was deposed in the supporting
affidavit that Kokomlemle, where
the land in dispute is situate,
is a registration area; that the
plaintiffs should not have
commenced the action in the High
Court and that the High Court
had no jurisdiction to entertain
the plaintiffs' writ. The
respondents also contended that
the High Court has jurisdiction
to entertain the suit.
In her ruling the presiding
judge refused to grant the
motion. She held inter alia:
“It is clear from the preamble
to PNDCL 152 that the Law was
promulgated to settle disputes
about title and to encourage
persons to have their simple
claims to land settled by the
Land Title Adjudicating
Committee and not to drag every
simple dispute into court. A
full reading of the preamble
shows clearly the extent of the
Law. I find that these claims
brought by the plaintiffs are
such as cannot properly be
settled by the committee without
resort to our courts even after
adjudication by the said
committee...”
The learned trial judge
accordingly refused the
application hence this appeal.
Learned counsel for the
appellant, Mr Afari Yeboah,
urged that the issue was whether
the High Court should exercise
jurisdiction in a claim to title
to land where the land was
situated in a registration
district under PNDCL 152. He
submitted further that in view
of section 12 of PNDCL 152, the
Land Title Adjudicating
Committee had jurisdiction to
deal with the claim before the
court and that since the claim
for letters of administration
concerned land, the Adjudicating
Committee had jurisdiction under
section 12 of PNDCL 152 to deal
with the claim. He submitted
finally that the paramount claim
of the plaintiffs was a claim to
land or interest in land. The
other reliefs being incidental
to the paramount claim, they
could be dealt with by the Land
Title Adjudicating Committee.
I have considered these points
and I am of the opinion that
since the adjudicating bodies
are created by statute, one has
to go to that statute to
determine its effect. The
relevant statute here is Land
Title Registration Law 1986
(PNDCL 152). Section 12 deals
with stay of proceedings in land
suits, and it is as follows:
“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 this Law have been
exhausted.
(2) Where at the time of the
publication of a notice under
section 11 of this Law an action
or proceding concerning any land
or interest therein in a
registration district referred
to in the notice is pending in
any Court or before the Stool
Lands Boundaries Settlement
Commission or the Stool Lands
Boundary Appeal Tribunal, any
claim under this 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...”
However, section 11 of PNDCL 152
is of crucial importance. It is
as follows:
"Subject to section 13 of this
Law, upon the declaration of a
registration district the Chief
Registrar shall, within fourteen
days of the declaration, issue
in respect of that district a
notice in which he shall –
(a) specify the situation and
limits of the registration
district;
(b) require any person who
claims to be the proprietor of
any land or of any interest in
any land within the registration
district to make a claim thereto
either in person or by an agent
within such period and at such
place and in such manner as may
be specified in the notice;
(c) require all claimants to any
land or to any interest in land
within the registration district
to mark or indicate the
boundaries of the land in such
manner as shall be specified in
the notice.”
There is no evidence before the
court that this section was
complied with by the Chief
Registrar of Lands or the
appellant. There is nothing in
the pleadings so far on this. Be
that as it may, the court below
did not consider this case as
one covered by PNDCL 152.
To be able to determine the
nature of the claim before the
High Court, I reproduce the
following relevant parts of the
statement of claim.
“1. 1st plaintiff is the head of
family of the late Ruth Sackiley
Sackey (deceased) who died
intestate on 5 August 1962.
2. 2nd plaintiff is the family
head of late Emmanuel Tetteh
Addy (deceased), son of late
Sackiley Sackey aforesaid, who
died intestate on 3 September
1990.
4. Plaintiffs say that after the
death of her mother, the late
Ruth Sackiley Sackey was
appointed customary successor of
her mother's properties
including land situate lying and
being at Kokomlemle commonly
called and known as H/No C345/4
Kokomlemle which was originally
acquired by way of customary
grant.
6. Plaintiffs say that the
documents on the land were later
prepared in the name of Ruth
Sackiley Sackey when she became
customary successor.
7. Plaintiffs contend that on
the death intestate of Ruth's
mother, the land became family
property.
10. That in or about 1990 the
late Emmanuel Tetteh Addy
(deceased) before he was
hospitalised, agreed with the
defendant to lease a portion of
the house aforesaid to enable
defendant to build a store on
the same.
11. Plaintiffs say that while so
hospitalised, the defendant
caused letters of administration
to be obtained fraudulently
without the consent and
authority of the head of family
of either late Ruth Sackiley
Sackey or her late mother and
conveyed the property to himself
as purchaser.”
Plaintiffs then pleaded five
particulars of fraud as follows:
1. The person who swore to be
the head of family was not the
family head.
2. Particulars in the
application for letters of
administration were false.
3. The original intention was to
grant a term of years of a
portion of the land to defendant
for a store.
4. The defendant did not pay the
deceased fully for the alleged
sale.
5. Adu Tackie who thumbprinted
the document as head of family,
an illiterate, was mistaken as
to the contents of the
document.”
To this statement of claim the
defendant also filed a statement
of defence and counterclaim, the
relevant portions of which are
as follows:
12. The defendant avers that he
bought house No C345/4
Kokomlemle after it had been
vested in the vendor, as
administrator and or sole
beneficiary, and that he bought
same in good faith. Defendant
says further that even if the
property is family property,
which is denied, he is a bona
fide purchaser for value without
notice.
14. The defendant avers that
after the sale the late Emmanuel
Tetteh Addy informed all tenants
in the house in dispute, his
children and defendant herein in
the presence of witnesses that
he had sold the house to the
defendant and defendant has
since been collecting rents.
15. Defendant says that the 2nd
plaintiff did not challenge the
sale in the lifetime of the
plaintiffs and is therefore
estopped.”
The defendant then
counterclaimed for:
“(a) a declaration of title to
house No C345/4 Kokomlemle
Accra.
(b) perpetual injunction
restraining the plaintiffs,
their servants, agents and
anybody claiming through them
from interfering with his
enjoyment of house No C345/4 in
any manner whatsoever.”
Taking the pleadings as they
stand, I am of the opinion that
the plaintiffs claim before the
High Court seeks certain
declaratory orders. The
adjudication committees, which
are to be set up under PNDCL 152
in my opinion, have no
jurisdiction to give such
declaratory judgments.
Furthermore there is a
counterclaim for an order for
perpetual injunction to restrain
the plaintiffs from interfering
with the defendant's enjoyment
of house No C345/4. Here again I
do not think that the
adjudication committee set up
under Law 152 has jurisdiction
to make such orders.
The defendant also counterclaims
for a declaration of title to
house No C345/4 Kokomlemle. This
claim cannot be dealt with by
the High Court. It is caught by
section 12 (1) of PNDCL 152,
which provides:
“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 this Law have been
exhausted.”
I have had the privilege of
reading the opinion of Aikins
JSC in the case of Kasser v
Raziel Construction Ltd
(No 2) [1992-93] GBR 513,
SC. That opinion, which forms
part of the majority decision in
that case fully discusses the
application of PNDCL 152. I
reproduce part of what Aikins
JSC said in that case:
“Before us the applicant
submitted (virtually repeating
his submissions in the Court of
Appeal), first, that the
judgment of the trial court
could not be supported because
the court lacked jurisdiction to
determine the plaint of the
respondent-company by virtue of
section 12 (1) of PNDCL 152, and
secondly, that the declaration
of the area covering the
disputed premises as a
registration district
automatically brought the
parties before the Land Title
Adjudication Committee
established under section 22 of
the Law …
Admittedly, section 12 (1)
prohibits any action concerning
land or interest therein
situated in a registration
district to be commenced in any
court until the procedures for
the settlement of disputes under
Law are exhausted…
It is a misconception therefore
to assert that the mere
declaration of a registration
district gives automatic
jurisdiction to the Adjudication
Committee to entertain claims of
proprietors of land or of
interest in land within the
registration district.”
The learned judge then proceeded
to discuss the application of
sections 11 and 13 of PNDCL 152
in some detail and continued as
follows:
“I now turn to the first
submission, namely, the issue of
jurisdiction of the trial court.
The burden of learned counsel's
argument is that the trial judge
should have ensured that the
procedures for settling disputes
under PNDCL 152 had been
completely exhausted before
proceeding with the action in
this court. …The fact of
registration of applicant’s
lease cannot per se oust
the jurisdiction of the court.
Moreover, since the root of
title of the respondent-company
was duly stamped and registered
in 1986 the title was not
affected by the 10 November 1990
declaration.”
In the end the learned judge
rejected the application and
dismissed it. It means
therefore, in my opinion, that
PNDCL 152 does not oust the
jurisdiction of the court in all
cases. It is also essential for
the party who wanted to oust the
jurisdiction of the court to
plead facts which will seek to
oust the court's jurisdiction in
terms of PNDCL 152.
Learned counsel for the
appellant argued that where the
court's authority was ousted by
statute then that court would
have no jurisdiction in the
matter. Counsel relied on a
number of decided cases to
support his view, namely, Rep
v Dugbaza VIII, ex parte
National House of Chiefs
[1989-90] 2 GLR 226, Rep v
Asankare Traditional Council, ex
parte Afrakoma [1989-90] 2
GLR 592, Rep v Court of
Appeal, ex parte Ekuntan II
[1989-90] 2 GLR 169, SC. All
these cases affirm the old
principle that a court cannot
assume jurisdiction where the
jurisdiction of the court has
been taken away by statute. It
is not a new principle and I
also uphold it. However, in this
case, the remedies sought by the
plaintiffs are well within the
jurisdiction of the court. It is
the defendant's counterclaim,
which seeks a remedy, which is
not within the jurisdiction of
the court. In my opinion the
court can proceed to deal with
the plaintiffs' case. The
defendant can refer his claim to
the appropriate body set up to
deal with the claim under PNDCL
152 after the plaintiffs' case
has been determined by the
court.
For the reasons given, I will
dismiss the appeal.
ADJABENG JA.
I agree.
LUTTERODT JA.
I also agree.
Appeal dismissed.
Kizito Beyuo, Legal Practitioner |
