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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
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.
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