HIGH COURT, ACCRA
DATE: 7TH FEBRUARY, 1962
BEFORE: OLLENNU, J.
NATURE OF PROCEEDINGS
ACTION to set aside a judgment obtained in a local court on the ground of fraud.
COUNSEL
E. L. Cole for the plaintiff.
First defendant in person.
No appearance for or by second defendant.
JUDGMENT OF OLLENNU J.
By his amended claim, the plaintiff sought an order declaring null and void a judgment of the Accra West Local Court delivered against him on the 15th June, 1961, in favour of the first defendant. He also sought an order for injunction restraining the defendants their agents and servants from interfering with his lands. The ground of his claim is that the judgment was obtained by fraud.
The facts of the case are briefly as follows. The Sempe stool by deed, exhibit D, dated the 8th December, 1947, conveyed a piece of land to the plaintiff and placed him in possession. The first defendant later sold a portion of the identical land to one Gariba Dan Bruno, and the latter built upon it. The plaintiff thereupon instituted an action against the said Gariba Dan Bruno and the first defendant, and obtained judgment against them, exhibit C, for recovery of possession and injunction.
He was later placed in possession of the land with the buildings thereon, upon a writ of possession, exhibit D, executed in July, 1955, and he has remained in possession thereof ever since.
In May, 1961, the first defendant instituted an action against the plaintiff in the Accra West Local Court, for a declaration of title and damages for trespass to an area of land which he described as follows: “All that piece or parcel of land bounded on the north by Akwamu stool lands, on the south by the sea, on the east by Otublohum lands and on the west by Obutu stools lands”. Land of that description must cover a huge area stretching several miles both in length and breadth comprising the major part of Accra City, and several towns and villages outside Accra, and
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would be worth many thousands of pounds. Prima facie, a local court by virtue of section 98 (2) of the Courts Act, 19601(1) has no jurisdiction to entertain a suit with respect to that land unless the parties expressly consented to the local court exercising such jurisdiction.
The plaintiff said that when the case was called in the local court, he told the magistrate that he claimed no interest in such a vast area of land. The record of the local court, exhibit E, also disclosed that the plaintiff objected to the jurisdiction of the local court, whereupon “on 8th June, 1961, the court adjourned at 9.29 a.m. to inspect the land in dispute for assessing the jurisdiction of this court, but the defendant refused to go to inspect the said land”. In spite of the plaintiff’s objections, as recorded by him, the magistrate went to inspect the land. The relevant parts of his inspection report are as follows: “Land in dispute inspected ex parte, plaintiff alone being present. Plaintiff showed the court the said land measuring 100 feet by 70 feet on which stands a compound swish house. Plaintiff told court defendant owns the said compound swish house.
The court immediately re-assembled from the inspection of the said land. Plaintiff alone still being present, defendant having left the court and gone home at the time the magistrate was leaving to inspect the said land. Plaintiff confirmed on oath what he told the court at the inspection and the case was adjourned to 15th June, 1961 for further hearing.
Plaintiff: present at inspection defendant absent (having refused to go to the inspection).”
He then gave judgment for the defendant against the plaintiff.
It is significant that after he had carried out the inspection the local court magistrate did not say a word as to the value of the land with the compound house standing on it, even though, as he himself said, he had gone on the inspection specifically to ascertain its value to determine his jurisdiction. In the first place it is not the duty of the local court to assess value of land to fix its jurisdiction.
According to section 98 (2) a local court has no jurisdiction in land causes except where the plaintiff shows that the value thereof does not exceed £G200, or where both parties agree that the local court should exercise jurisdiction. In the absence of clear proof that the value of the land is not above £G200 there is complete absence of jurisdiction, and the whole of the proceedings are null and void. But that is by the way.
The real complaint of the plaintiff is that the first defendant fraudulently described a large area of land in his writ of summons, exhibit A, purposely to mislead the local court to re-open the case in respect of which he had obtained the judgment, exhibit C, delivered in favour of the plaintiff by van Lare, J., as he then was, and thereby nullify the same; and that the local court magistrate too lent a hand to the said fraud when he accepted the plot of land with buildings thereon shown to him at Lartebiokorshie, nowhere near the sea, and several miles away from Akwamu and Obutu, as the land described in the writ of summons, exhibit A. The defendant himself giving evidence in this case said that the land he intended to sue and did sue the plaintiff about, is the land in respect of which the judgment of van Lare, J., was given against him. He further said that the land he pointed out to the local court magistrate at the inspection is the very property which he lost to the plaintiff in the said judgment of van Lare, J., exhibit C, and of which
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the plaintiff was placed in possession upon the writ of possession, exhibit D. The following questions put by the first defendant to the plaintiff, and the answers the plaintiff gave to them reveal that the defendant fraudulently obtained the judgment of the local court:
“Q. Since both you and I are subjects of the Sempe Stool, and the land is also Sempe stool land, why was it that when I gave land to Dan Bruno and he built upon it you dispossessed him, my grantee of it?
A. I did so upon the judgment of this court exhibit C, and also exhibit D; in other words I did not dispossess him, it was the law which dispossessed him of it.”
“Q. What right have you to drive me and my grantee from the land I granted?
A. I did not drive you and your grantee from the land, the law did.”
The defendant was well aware that if he gave the correct description of the land he wanted to re-litigate about, the plaintiff would have successfully pleaded that the dispute was res judicata. And it must have been apparent to the local court magistrate too, at the inspection, that the land the defendant showed to him as the land in dispute is entirely different from the one described in the writ of summons. Yet in spite of the glaring difference between the two lands the local court magistrate entered judgment for the defendant. That fraud successfully practised by the defendant on the court has led to very grave injustice, and given rise to a judgment of an inferior court the effect of which is to nullify a lawful judgment of a superior court, and the consequent process taken thereon.
The judgment of the local court, exhibit E, delivered on the 15th June, 1961, having been obtained by fraud, is null and void, and I do so declare it. All process taken in pursuance of the said void judgment is also declared null and void.
The defendants are restrained from entering upon the said land or any part thereof for any purposes whatsoever or in anyway interfering with the plaintiff in his ownership, possession and occupation of the land. The plaintiff will have his costs fixed at 45 guineas inclusive.
DECISION
Judgment for plaintiff.
