|
Land - Ownership - Declaration
of title - Stool Lands
Boundaries Settlement Decree,
1972 (NRCD 172) - Whether cour
can
stay proceedings in land
suit and refer the matter the
Stool Boundary Commission -
HEADNOTES
The
plaintiff on behalf of himself
and his family, the Nsona Family
of Enyan Denkyira, caused to be
issued a writ of summons against
the defendants endorsed with a
claim of declaration of title to
land commonly called "ANAPAA
land" situate at Enyan Denkyira
in the Central Region and for
damages for trespass. The
plaintiff sued the defendants
because they laid claim of
ownership to the disputed land.
The 1st defendant was sued
through its occupant and 2nd
defendant hails from Breman
Essiam which has a common
boundary with Enyan Denkyira. At
paragraphs 12 and 14 of their
statement of defence the
defendants pleaded that a stream
called "Brobosu" has since time
immemorial been the boundary
between Breman Essiem and Enyan
Denkyira and that the disputed
land lies on the Breman Essiam
side of the boundary.
co-defendant filed a motion
objecting to the continuance of
the hearing in the High Court on
the ground that the proceedings
were caught by the provisions of
the Stool Lands Boundaries
Settlement Decree, 1972 (NRCD
172).-
HELD :-
From the above analysis,
the proceedings in Suit No.25/77
up to the order by B.
Agyeman-Bempa J on 23rd April,
1997 for the determination of
the boundary between Enyan
Denkyira Stool and Breman Essiam
Stool by the Stool Lands
Boundary Settlement Commission
were regular but those in the
Commission and the High Court
up to and including the judgment
were fundamentally incompetent
and are set aside. As things
stand now, the reference
Agyeman-Bempa J made to the
Commission has lapsed by
operation of law since it has
been dissolved and its
jurisdiction re-conferred on the
High Court. We therefore affirm
the judgment of the Court of
Appeal and order a retrial.
STATUTES REFERRED TO IN JUDGMENT
Stool Lands Boundaries
Settlement Decree, 1972 (NRCD
172).
Stool Lands Boundary
Settlement (Repeal) Act, 2000
(Act 587).
Stool Lands Boundaries
Settlement (Amendment) Law, 1986
(P.N.D.C.L. 147)
High Court (Civil
Procedure) Rules, 2004 (C.I.47)
Order 1 Rule 2
CASES REFERRED TO IN JUDGMENT
Hanna Assi (No 2) v GIHOC
(No 2) [2007-2008] SCGLR 16,
Republic v High Court,
Kofoidua, Ex parte Eastern
Regional Development Corporation
[2003-2004] SCGLR 21
In re Kumi (Decd);
[2007-2008] SCGLR 623 at 634
Vasquez v Quarshie [1968]
GLR 62 at 65
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
PWAMANG, JSC:-
COUNSEL
EDWARD SAM CRABBE FOR 1ST,
2ND AND CO-
DEFENDANTS/RESPONDENTS/APPELLANTS.
MICHAEL ARTHUR DADZIE FOR
THE
PLAINTIFF/APPELLANT/RESPONDENT.
PWAMANG, JSC:-
This is an appeal against
the judgment of the Court of
Appeal sitting at Cape Coast
dated 23rd February, 2016 which
set aside the judgment of the
High Court and ordered a
retrial. The High Court gave
judgment in favour of the
defendants/ respondents/
appellants against the
plaintiff/appellant/respondent
and the co-defendant. In this
judgment we shall refer to the
parties by their descriptions in
the trial court.
A summary of the
background of the case is as
follows; In 1977, in Suit No LS
25/77 the plaintiff on behalf of
himself and his family, the
Nsona Family of Enyan Denkyira,
caused to be issued a writ of
summons against the defendants
endorsed with a claim of
declaration of title to land
commonly called "ANAPAA land"
situate at Enyan Denkyira in the
Central Region and for damages
for trespass. The plaintiff sued
the defendants because they laid
claim of ownership to the
disputed land. The 1st defendant
was sued through its occupant
and 2nd defendant hails from
Breman Essiam which has a common
boundary with Enyan Denkyira. At
paragraphs 12 and 14 of their
statement of defence the
defendants pleaded that a stream
called "Brobosu" has since time
immemorial been the boundary
between Breman Essiem and Enyan
Denkyira and that the disputed
land lies on the Breman Essiam
side of the boundary. The court
appointed a surveyor to survey
the land and this was done and
tendered in evidence. However,
it was in 1993 that the
plaintiff opened his case before
G.M. Quaye J.
In the course of the
cross-examination of the
plaintiff, one Nana Oguamon
Atwere II, Twafohene of the
Bremen Essiem Traditional Area
applied and was joined to the
suit on behalf of his family as
Co-defendant. He also laid claim
to the disputed land. In 1997,
while plaintiff was still under
cross-examination, this time
before Beatrice Agyeman-Bempa J,
the defendants, who had changed
their lawyer, and co-defendant
filed a motion objecting to the
continuance of the hearing in
the High Court on the ground
that the proceedings were caught
by the provisions of the
Stool Lands Boundaries
Settlement Decree, 1972 (NRCD
172). They argued that from
the pleadings in the case and
the evidence of the plaintiff
that far, the boundary between
Enyan Denkyira Stool and Breman
Essiam Stool lands was critical
to the determination of the main
issue of ownership of "Anapaa
lands". Relying on Section 4(2)
of NRCD 172, they prayed the
court to stay proceedings in the
land suit and refer the matter
of the boundary between the
paramount stools to the Stool
Lands Boundary Settlement
Commission (to be referred to in
this judgment as the Commission)
established by NRCD 172, for
determination and for them to
come back thereafter to continue
with the proceedings. Though
the plaintiff opposed the
application it was granted by
the court on 23rd April, 1997.
B. Agyeman-Bempa J stayed the
proceedings and referred the
issue of the boundary between
Enyan Denkyira and Breman Essiam
to the Commission for
determination. As the Paramount
Stool of Enyan Denkyira was not
party to the case the trial
judge directed that the
paramount chief of Enyan
Denkyira was to be notified of
the reference.
On 10/12/97 proceedings
commenced before the Commission
as Enquiry No 7/97 with Enyan
Denkyira Stool as the 1st
Claimant and Breman Essiam Stool
as the 2nd Claimant. The sole
Commissioner, J. A. Osei J,
ordered them to file their
statements of dispute and survey
instructions and appointed a
surveyor to undertake a survey
of the land. Plaintiff attended
that first sitting of the
Commission and was recorded as
representing the Enyan Denkyira
Stool. However, the statement of
dispute he subsequently filed
for the 1st claimant was headed
"Statement of Dispute by Twafo
Stool of Enyan Denkyira per
Albert Kobina Koomson".
Similarly, the Survey
Instructions of the 1st claimant
were filed on behalf of Twafo
Stool of Enyan Denkyira. The
Paramount Stool of Enyan
Denkyira did not appear and did
not file any processes before
the Commission but the Breman
Stool appeared and filed
processes as the 2nd claimant.
Later, Ajumako Stool applied to
the Commission and was joined
as 3rd claimant. A survey was
conducted and an enquiry plan
drawn up but there was no
hearing at the Commission before
it was dissolved by the Stool
Lands Boundary Settlement
(Repeal) Act, 2000 (Act 587).
By virtue of the
provisions of Act 587, Enquiry
No 7/97 was transferred to the
High Court, Cape Coast in 2003
and was listed before Nana
Gyamera-Tawiah J. After the
transfer to the High Court the
2nd claimant filed a motion on
notice for consolidation of the
two suits, i.e Enquiry No 7/97
and Suit No.LS 25/77 and same
was granted by the court on
22/12/03. The order for
consolidation stated that the
two suits were to be tried
together. Subsequent to that,
there were amendments to the
pleadings without a clear
indication whether the
amendments were in respect of
Suit No. LS. 25/77 or Enquiry
No. 7/97. Hearing resumed and
the surveyor who undertook the
survey at the Commission gave
evidence and tendered the
enquiry plan he prepared.
Thereafter, the
cross-examination of plaintiff
in Suit No. LS 25/77 continued
to completion after which
plaintiff called his witnesses
followed by the case of the
defendants. 3rd claimant's
representative testified as a
witness for plaintiff and did
not give any distinct evidence
in respect of its claim in
Enquiry No. 7/97. In the course
of the trial the lawyer for the
plaintiff, Cab-Addae, drew the
attention of the court to the
obvious confusion in the
proceedings but Alhaji M. A.
Mustapha J, who tried the case
after the consolidation,
responded that in the judgment
the matters would be clarified.
However, when Alhaji M. A.
Mustapha delivered his judgment
on 3rd May, 2011 he did not
separate the cases but gave one
judgment. The plaintiff appealed
against the judgment on grounds
of substantial errors of law
committed by the trial judge and
wrong evaluation of the
evidence.
In their judgment setting
aside the decision of the High
Court and ordering a retrial,
the Court of Appeal held that
the trial was attended with
fundamental procedural blunders
and flaws that compromised the
fidelity of the court processes
and disabled the court from
doing substantial justice in the
case. They faulted the trial
judge for failing to observe the
separate identities of the cases
after the consolidation and
pronouncing separate judgments
as has been held in a number of
decided cases. They stated that
they came to their decision very
reluctantly having regard to the
chequered history of the case.
Although the Court of
Appeal did not pronounce on the
merits of the case, the
defendants who decided to appeal
against their judgment to this
court filed ten grounds of
appeal, including additional
grounds, and in most of them
they impeached the judgment on
the basis of the evidence led at
the trial. In respect of the
procedural breaches at the
trial, the Court of Appeal held
that the judge erred in giving
judgment on a non-existent
amended statement of defence and
counterclaim. However,
defendants have disputed that
the amended defence and
counterclaim was non-existent.
Alternatively, they have argued
in their statement of case that
on the authority of Hanna
Assi (No 2) v GIHOC (No 2)
[2007-2008] SCGLR 16, where
parties have joined issue on
title to land, declaration of
title may be made in favour of a
defendant who did not file a
formal counterclaim. The next
issue tackled by the defendants
in this appeal is in respect of
the holding by the Court of
Appeal that since the Paramount
Stool of Enyan Denkyira was not
served in respect of the
proceedings before the
Commission those proceedings
were a nullity. Strangely, the
defendants who in their address
in the High Court made the point
that plaintiff herein had no
capacity to represent the Enyan
Denkyira Stool this time round
now contend that plaintiff
effectively represented the
Enyan Denkyira Stool at the
Commission. In concluding their
arguments on the legal
objections to the judgment of
the High Court, the defendants
relied on Order 1 Rule 2 of
the High Court (Civil Procedure)
Rules, 2004 (C.I.47) and
submitted that the rules
of the High Court are to be
interpreted and applied to
achieve speedy justice and avoid
delays and that the order by the
Court of Appeal for a retrial
would delay the case by about
forty years. They therefore
prayed us to overlook the lapses
of the trial court and restore
its judgment on the basis of
the evidence led. They referred
to the case of Republic v
High Court, Kofoidua, Ex parte
Eastern Regional Development
Corporation [2003-2004] SCGLR
21. The plaintiff on his
part agreed with the Court of
Appeal that the errors of the
trial court occasioned a
miscarriage of justice but he
nonetheless prayed that in the
event that we decide to
determine the case on the
evidence, then judgment ought to
be given in his favour.
From the record before us,
our view is that the Court of
Appeal was right in holding that
the proceedings in the
Commission were not properly
constituted. The proceedings
were to be between Enyan
Denkyira Paramount Stool and
Breman Essiam Paramount Stool
and the court in making the
reference to the Commission was
clear in stating that the Chief
of Enyan Denkyira was to be
notified. This was not done and
though plaintiff in the land
suit was served and appeared at
the Commission and also filed
processes all were done in the
name of Twafo Stool family and
not Enyan Denkyira Paramount
Stool. In the judgment of the
High Court it held that Enyan
Denkyira Paramount Stool was
never party to the proceedings
in the Commission and that
plaintiff lacked capacity to
represent it. Though in this
appeal the defendants argued
that plaintiff represented the
Enyan Denkyira Paramount Stool
at the Commission, they did not
appeal against the finding by
the High Court that plaintiff
had no such capacity. What that
simply meant was that those
proceedings were void because
the 1st claimant was never
served and never participated in
the proceedings as ordered by
the Court. In the case of In
re Kumi (Decd); [2007-2008]
SCGLR 623 at 634
Sophia-Adinyira, JSC, on behalf
of the Supreme Court, approved
of the following statement of
Amissah JA in Vasquez v
Quarshie [1968] GLR 62 at 65;
"A court making a decision
in a case where a party does not
appear because he has not been
notified is doing an act which
is a nullity on grounds of
absence of jurisdiction."
Though the trial judge
rightly held that Enyan Denkyira
Paramount Stool was not part of
the proceedings at the
Commission, what he probably did
not realise was that the
proceedings conducted in the
case in the High Court after the
dissolution of the Commission
were a continuation of the
incompetent enquiry proceedings
because the authority to
continue with those proceedings
was conferred by Act 587 for
purpose of the determination of
the boundary between Enyan
Denkyira and Breman Essiem.
Sections 2 & 3 provide as
follows;
"2. Repeal of N.R.C.D. 172
The Stool Lands Boundaries
Settlement Decree, 1973
(N.R.C.D. 172) as amended by the
Stool Lands Boundaries
Settlement (Amendment) Law, 1986
(P.N.D.C.L. 147) is hereby
repealed.
3. Saving and
transitional provisions
(1) Subject to
subsection (2) the cases and
proceedings pending before the
Commissioner immediately before
the coming into force of this
Act are by this Act transferred
to the High Court."
So it is the improperly
constituted proceedings pending
before the Commission that was
transferred to the High Court.
The Commission and after it the
High Court failed to notice the
fundamental defect in proceeding
without the Paramount Stool of
Enyan Denkyira, and
unfortunately the lawyers in the
case too did not help matters,
so they all travelled on a
journey to no where. The manner
the High Court conducted the
proceedings after the transfer
of the Enquiry case showed that
no attention was paid to the
provisions of the statutes under
which it exercised jurisdiction
in the cases. For instance, it
was pursuant to Sections 4 (1) &
(2) of NRCD 172 that the
proceedings in Suit No. LS 25/77
were stayed but the High Court
resumed proceedings in that case
without regard to those
provisions. They are as follows;
"4. (1) The Commissioner shall
have exclusive jurisdiction to
determine the boundaries of
stool lands and to hear and
determine questions or disputes
relating thereto.
(2) Where on or after the
commencement of this Decree any
proceedings are pending or are
brought in any Court and in
either case it appears to the
Court that the situation of any
stool land boundary is the real
issue in dispute before the
Court, the Court shall decline
jurisdiction over the
determination of that issue; but
where it appears to the Court
that the situation of the said
boundary is only incidental to
the determination of the real
issue, the Court shall order a
stay of those proceedings until
the boundary shall have been
finally determined as provided
in this Decree and may also make
such incidental or consequential
orders as the Court may deem
just." (emphasis supplied)
The proceedings in Suit
No. LS. 25/77 were stayed on the
basis that a determination of
the boundary between Enyan
Denkyira and Breman Essiam was
incidental to the determination
of the real issue which was
ownership of "Anapaa lands".
That being so, by the provisions
in Section 4(2) of NRCD 172
quoted above, the proceedings in
the land suit were stayed until
the stools boundaries were
determined. So the Commission
was to first determine the stool
lands boundary in separate
proceedings and after that the
High Court would resume
proceedings in the land suit
having regard to the stool
boundaries determined by the
Commission. That is the scheme
of proceedings that was adopted
by the statute and it ought to
have been followed despite its
subsequent repeal.
That notwithstanding, the
High Court purported to resume
proceedings in Suit No. LS.
25/77 by consolidating it to
Enquiry No. 7/97, which was void
anyway, when the boundary had by
then not been determined. The
High Court's authority to
conduct proceedings in Suit No.
LS 25/77 had been suspended by
Section 4(2) so its resumption
of jurisdiction in that suit was
pre-mature and the consolidation
order was void.
We have given sympathetic
thought to the plea of the
defendants that affirmation of
the judgment of the Court of
Appeal will cause considerable
delay in bringing finality to
this case but we wish to note
that Order 1 Rule 2 of C.I.47
that defendants have referred to
also provides that the rules of
court are to be interpreted and
applied to ensure complete and
effective justice. Effective
justice can only be achieved by
trial courts following judicial
precedent and complying with
provisions of enactments binding
on them. Beside, in this case
the trial court did not only
breach the rules of court but it
breached provisions of
substantive statutes and rules
of natural justice.
Where statute has provided
for a procedure for the
determination of a dispute that
procedure ought to be strictly
adhered to because parties
appearing in court have a right
to have their dispute determined
in accordance with laid down
procedure. NRCD 172 and Act 587
are substantive statutes and a
court of law is not entitled to
set aside the provisions of a
statute that prescribes the
manner it is required to
exercise jurisdiction in matters
regulated by the statute.
From the above analysis,
the proceedings in Suit No.25/77
up to the order by B.
Agyeman-Bempa J on 23rd April,
1997 for the determination of
the boundary between Enyan
Denkyira Stool and Breman Essiam
Stool by the Stool Lands
Boundary Settlement Commission
were regular but those in the
Commission and the High Court
up to and including the judgment
were fundamentally incompetent
and are set aside. As things
stand now, the reference
Agyeman-Bempa J made to the
Commission has lapsed by
operation of law since it has
been dissolved and its
jurisdiction re-conferred on the
High Court. We therefore affirm
the judgment of the Court of
Appeal and order a retrial.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
EDWARD SAM CRABBE FOR 1ST,
2ND AND CO-
DEFENDANTS/RESPONDENTS/APPELLANTS.
MICHAEL ARTHUR DADZIE FOR
THE
PLAINTIFF/APPELLANT/RESPONDENT.
|
