HAMMOND v. ODOI AND ANOTHER [1972] 2 GLR 459
COURT OF APPEAL
Date: 3 JULY 1972
BEFORE: PREMPEH J.S.C., JIAGGE AND SOWAH JJ.A.
CASES REFERRED TO
(1) Odoi v. Hammond [1971] 1 G.L.R. 375, C.A.
(2) Jones v. Biernstein [1900] 1 Q.B. 100; 81 L.T. 553; 48 W.R. 232 16 T.L.R. 30, C.A.
(3) Sanderson v. Blyth Theatre Co. [1903] 2 K.B. 533; 72 L.J.K.B. 761; 89 L.T. 159; 52 W.R. 33; 19
T.L.R. 660, C.A. [p.461] of [1972] 2 GLR 459
NATURE OF PROCEEDINGS
APPLICATION for leave to appeal to the Supreme Court against a majority decision of the Court of
Appeal. The facts are sufficiently set out in the ruling of Prempeh J.S.C.
COUNSEL
Mensah for the applicant.
P. A. Adjetey for the respondents.
JUDGMENT OF PREMPEH J.S.C.
This is an application by the plaintiff-respondent-applicant (hereinafter referred to shortly as the
applicant) for an order for leave to appeal to the Supreme Court against the majority judgment of this court in Odoi v. Hammond [1971] 1 G.L.R. 375, C.A. given on 21 December 1970, setting aside the judgment of Apaloo J.A., as he then was, sitting as an additional judge of the High Court, Accra. The majority decision of this court from which Siriboe J.S.C. dissented was delivered by Azu Crabbe J.A., as he then was, and Sowah J.A.
In order the better to appreciate the reason why leave to appeal had to be sought from this court, it is
necessary in the first place to know the nature of the proceedings which were commenced in the trial
court, and to refer also to the provisions of the law then applicable, that regulated the procedure for
appeals from this court to the Supreme Court.
The claim of the applicant against the defendants-appellants-respondents (hereinafter referred to as the respondents) as stated in his writ of summons was for:
“(1) A declaration of title to all that piece or parcel of land situate lying and being at Kotobabi Accra and bounded on the north by Osu Stool land measuring 140 feet on the south by a proposed road
measuring 140 feet on the east by plaintiff’s land measuring 100 feet and on the west by a proposed
road measuring 100 feet.
(2) £G500 damages for trespass.
(3) Perpetual injunction against the defendants, their servants, workmen and agents from entering the said land.” I think it is just enough at this stage to mention that the pleadings which were filed in the trial court have been fully reproduced in the judgment of this court (Odoi v. Hammond (supra)), and as to their effect and importance I cannot but agree in toto with the preliminary remarks of Azu Crabbe J.A. when he said at p. 379 that, “The statement of claim endorsed on the writ and of the statement of defence are both important.”
At the end of the trial, the learned High Court judge pronounced judgment in favour of the applicant,
against which the respondents appealed to this court, which in turn reversed it on several grounds
including questions of law and mixed law and fact; it is against this judgment that the application has
been brought. [p.462] of [1972] 2 GLR 459 Article 105 (1) (a), (b) and (c) of the Constitution, 1969, lay down the requirements under which an appeal shall lie from this court to the Supreme Court. It provides as follows: “105. (1) An appeal shall lie from a judgment, decree or order of the Court of Appeal to the Supreme Court, (a) as of right, in any civil cause or matter where the amount or value of the subject matter of the dispute is not less than such an amount as may be determined by Parliament; or (b) as of right, in any criminal cause or matter in respect of which an appeal has been
brought to the Court of Appeal from a judgment, decree or order of the High Court of
Justice in the exercise of its original jurisdiction; or (c) with the leave of the Court of Appeal, in any other cause or matter, civil or criminal, where the Court of Appeal is satisfied that the case involves a substantial question of law or is of public importance.” It is under paragraph (c) of clause (1) of article 105 of the Constitution that this application for leave to appeal has been brought.
Indeed, it seems quite obvious from the nature of that claim, as also noteworthly, that due to the fact that at the time of filing, Parliament had not determined the amount or value of the subject-matter in dispute in respect of which an appeal as of right would lie the applicant could not have come under any other paragraph of the said article.
The grounds of appeal as appear on the notice of motion which was filed on 6 April 1971, are as
hereunder: “(1) That the learned appeal judges (Azu Crabbe and Sowah JJ.A.) who gave majority judgment in favour of the defendants were wrong in holding that the customary grant to the plaintiff in 1949 was null and void when there was ample evidence on record to prove that the plaintiff belongs to the Nii We family under the Mankralo Stool of Osu which in turn is under the Osu Paramount Stool and that the plaintiff at all times acknowledged and recognised the absolute title of the Osu Stool. (2) That the learned appeal judges failed to appreciate the full force of the customary land tenure of Osu lands by which a subject of the Osu Stool such as plaintiff obtained only a determinable title and not absolute title to vacant land which he occupied himself or which if previously occupied by his family as subjects of the stool, is granted to him for building purposes and that whether it is with or without the stool’s consent or confirmation cannot be said to be null and void. [p.463] of [1972] 2 GLR 459 (3) That the learned appeal judges misdirected themselves on the legal principle that a stool cannot alienate stool land already in possession of a subject of the stool and that the said subject can successfully maintain an action against the whole world including even his stool. (4) That the learned judges of the Court of Appeal erred in law in holding that the plaintiff’s reply to the defendants’ statement of defence and counterclaim was no proper reply but was a departure from the pleadings and that the statement of claim should have been amended. (5) That the learned judges of the Court of Appeal misdirected themselves on the law when they held that
it is not competent for the plaintiff to introduce new matter by way of controverting the statements in
the defence and to explain why certain things happened in the case and that they failed to appreciate
that it is not the introduction of every new matter or fact in a reply which amounts to setting up a new case. (6) That the learned majority of the judges of the Court of Appeal were wrong in holding that the evidence and pleadings of the plaintiff tended to show that the plaintiff acquired absolute title through the Nii We family as against the Osu Stool when there was ample evidence on record to the effect that the plaintiff at all tinres recognised the absolute title of the Osu stool which hitherto allowed the Nii We family to occupy and grant Kotobabi lands to both subjects and strangers until the early 1960’s and that what the plaintiff acquired in 1949 from the Nii We family was a determinable or possessory title by customary grant of which even the Osu stool could not deprive him being a subject of the said stool who is entitled to free use of such vacant land. (7) That the learned majority of judges of the Court of Appeal erred in law in finding for the defendants
who failed to call any witness to prove the demarcation of their land and to describe the condition in
which the land was at the time of the demarcation and to prove that they in fact fixed pillars bearing
the initials G.Y.O. to mark the said land as alleged by them. (8) That the judgments of the learned judges of the Court of Appeal (Azu Crabbe and Sowah JJ.A.) were against the weight of evidence, contrary to law and are otherwise unsupportable. (9) That the learned majority of the judges of the Court of Appeal were wrong in law in holding that the plaintiff’s confirmatory deed (exhibit E) offended against section 7 (1) of the Administration of Lands Act, 1962 (Act 123), and section 24 (1) of Land Registry Act, 1962 (Act 122), when the learned judges well knew that the two Acts have no [p.464] of [1972] 2 GLR 459 application to a customary grant of stool land by a stool to its subject such as the plaintiff, who is entitled by customary law to free use of the land and who is proved to have been in effective occupation or possession of the land since November 1949, many years before the two Acts were passed in 1962. (10) That the learned majority of the judges of the Court of Appeal (Azu Crabbe and Sowah JJ.A.) misdirected themselves in holding that the defendants acted in good faith in erecting a house on the land in dispute when there was sufficient evidence to prove bad faith and recklessness on the part of the defendants who, in spite of several warnings and notice of a pending action against them for declaration of title and trespass, started and completed a building on the land in dispute. The learned judges of appeal were wrong in holding that the defendants were entitled to the protection of section 1 of the Land Development (Protection of Purchasers) Act, 1960 (Act 2).” It is scarcely necessary to point out that the judgment of the trial court has been seriously criticised by the majority judgment of this court on important issues of law appertaining to the legal principles applicable: (a) to the grants of the disputed land made respectively to the parties herein by the Nii We family, and later endorsed or regranted to the same parties by the Osu Paramount Stool;
(b) to the applicant’s claim of absolute title to the disputed land, based on his inherent right of entry as a subject of the Osu stool, and being in effective possession at the time that the customary grant
was made to him—as an effective bar to any subsequent alienation of the same portion of land
either by the Osu Paramount Stool or the Nii We family.
In this regard, it falls primarily to consider whether or not the majority judgment of this court was right in holding that the customary grant made by the Nii We family to the applicant was void ab initio as against the dissenting opinion expressed by a justice of this court and the trial judge, both of whom maintained otherwise.
Secondly, whether or not this court was justified in holding that the trial court wrongly permitted the
applicant to introduce or raise a new case in his reply to the defence filed, and whether the majority
judgment of this court would still have been the same, if the applicant had established by evidence that coupled with the customary grant made to him by the Nii We family, he, as an Osu stool subject, was at the time of the said grant, in effective possession of the disputed land, which in those circumstances could never be subsequently alienated either by the Nii We family or the Osu Paramount Stool. [p.465] of [1972] 2 GLR 459 It seems to me to be too clear for argument that these are all serious issues involving far reaching questions of law, as have been exemplified in grounds (1), (2) and (3) of the motion for leave to appeal, and after hearing counsel for the applicant on grounds (1), (2) and (3), we called upon counsel for the respondents who had previously indicated his strong opposition to the application.
The first objection raised by learned counsel for the respondents was that since the application did not conform with the provisions of rule 7 (1) of the Supreme Court Rules, 1970 (C.I. 13), it was not properly before the court, and that it should therefore be dismissed.
It is perfectly obvious that under normal circumstances counsel could not have taken this preliminary objection at that stage of the hearing, and that in any case, he had rendered himself incompetent to do so by his seemingly deliberate failure to give three clear days’ notice of his such intention, as he should have done by virtue of rule 17 (1) of the Rules of the Supreme Court, 1962 (L.I. 218); but nevertheless, we considered this apparent novel point not only interesting but considerably important, and we therefore granted him leave to argue the objection.
Rule 7 (1) of the Supreme Court Rules, 1970 (C.I. 13), provides as follows: “7. (1) An application for leave to appeal pursuant to the provisions of paragraph (c) of clause (1) of article 105 of the Constitution shall be by motion on notice in the Form 2 set out in the First Schedule to these Rules which shall be filed with the Registrar of the Court below within fourteen days of the date of the decision against which leave to appeal is sought.” Learned counsel maintained that since the judgment of this court was delivered on 21 December 1970, the motion for the pre-requisite order for leave was improperly before the court, it having been filed later than fourteen days of the date of the decision as prescribed by rule 7 (1) of the Rules of the Supreme Court, 1970 (C.I. 13), but since it is conceded that at that date, these rules guiding the procedure for such appeals had not come into effect, this contention is clearly devoid of any merit.
I am disposed to think that it is convenient at this stage to observe that if 25 March 1971, given as the date for the commencement of these rules was correct, (see back of last page of rules) it would seem that there could be no doubt whatsoever that the application which was filed on 6 April 1971, was perfectly in order; but that was the very basis of the next limb of counsel’s argument, which was a direct challenge to the correctness of the date given (i.e. 25 March 1971), and quite evidently, this was by far the most important point he had made at this hearing. [p.466] of [1972] 2 GLR 459 Learned counsel proceeded on the premise that if the date for the commencement of these rules was
worked out accurately and in strict conformity with the law applicable, the motion filed on 6 April 1971, would still be incompetent before the court, as being out of time, because the commencing date of the rules should be a date other than 25 March 1971.
In support of this contention he referred to the provisions of clause (6) of article 126 of the Constitution which reads as follows: “126. (6) Any Orders, Rules or Regulations made by any person or authority pursuant to a power conferred in that behalf by this Constitution or any other law,
(a) shall be laid before the National Assembly;
(b) shall be published in the Gazette on the day they are so laid before the National Assembly; and (c) shall come into force at the expiration of a period of twenty-one days of being so laid unless the National Assembly, before the expiration of the said period of twenty-one days, annuls any such Orders, Rules or Regulations by the votes of not less than two-thirds of all the members of the National Assembly.” It was not disputed that there were two dates of Gazette notification of these rules, that is 16 December 1970, and 23 February 1971, but counsel expressed his contentment to rest his argument on the latter date.
It was his contention that since in accordance with article 126 (6) (a) and (b) these rules must have been laid before the National Assembly on the date of their notification in the Gazette, i.e. on 23 February 1971, and since in accordance with article 126 (6) (c) these rules must come into effect at the expiration of 21 days of being so laid, it should follow that the date for the commencement of these rules must be 16 March 1971, and not 25 March 1971.
On the assumption that he was right on this outstanding controversial point that the date for the
commencement of the Rules of the Supreme Court, 1970 (C.I. 13), should be 16 March 1971, he
submitted that in filing the motion for the pre-requisite order for leave on 6 April 1971, the fourteen days had lapsed, and therefore the application was incompetent before the court and should be dismissed. The provisions of article 126 (6) are mandatory, and in the absence of any other evidence properly brought before us to show why the commencing date should be 25 March 1971 instead of 16 March 1971, it is my view that this submission of learned counsel for the respondents was not only invulnerable, but also unanswerable, and I feel bound to say that I could not be persuaded by the submission of the applicant’s counsel in reply to this well founded argument.
[p.467] of [1972] 2 GLR 459 On the day next after this court had adjourned to consider its ruling, counsel for the respondents caused to be circulated to us under cover of his letter dated 2 March 1972, copies of the minutes of the second session of the National Assembly, in order to establish decisively the date on which the question of the Supreme Court Rules, 1970 (C.I. 13), was laid before the National Assembly. This being an official document, significantly relevant to the important issue raised in this model case, I can see nothing wrong in the procedure by which these documents reached us.
The matter relevant to these proceedings was dealt with in the minutes of the first sitting of the third
meeting of the National Assembly held at Parliament House on Tuesday, 23 February 1971, at page 134 of the said minutes under the heading:
“The following Papers were laid:
(i) By the Minister of Works and Housing, Ghana Water and Sewerage Corporation (Tax Exemption) Regulation 1971. (ii) By the Attorney-General and Minister of Justice, Supreme Court Rules 1970.”
This authoritative document conclusively establishes the point as to the date on which these rules were laid before the National Assembly, i.e. 23 February 1971, and making due allowance for the period of 21 days as is required by article 126 (6) (c) of the Constitution, it is simply logical to conclude that the date for the commencement of the Supreme Court Rules 1970 (C.I. 13), should be 16 March 1971. It follows therefore from this conclusion that the instant application having been filed on 6 April 1971, could not have been properly before the court.
But this exceedingly formidable point so brilliantly put forward on behalf of the respondents, has been rendered completely ineffective at the very verge of success, by the coming into force of the Courts Act, 1971 (Act 372), the provisions of section 114 (4) of which read as follows: [His lordship here read the provisions of the section as set out in the headnote and continued:] The Courts Act, 1971 (Act 372), had the Presidential Assent on 22 September 1971.
In the circumstances, since the judgment in this case was delivered before the commencement of the
Supreme Court Rules, 1970 (C.I. 13), be it 16 March 1971 or 25 March 1971, and since at the date of the coming into force of the Courts Act, 1971 (Act 372), the applicant had filed this notice for leave to
appeal, it had been duly filed, and was properly before the court and therefore the respondents’ objection on this ground must fail.
Learned counsel for the respondents then sought to urge that no substantial questions of law had been raised in this appeal. He submitted further that if there were any such points of law raised at
[p.468] of [1972] 2 GLR 459 all, they were points of law on which there are no judicial disagreements but I must say that I am not prepared to lend support to this seemingly sweeping submission which purports to suggest that the legal issues raised and dealt with in this case are singularly free from complexity. For my part, I am perfectly satisfied and I do hold the view that this case involves outstanding and substantial questions of law of far reaching implications; and moreover, in so far as there have been divergent opinions expressed on those questions of law by distinguished justices of the Supreme Court and the Court of Appeal, I think that this is eminently a case in which leave to appeal to the Supreme Court ought to be granted.
In the case of Jones v. Biernstein [1900] 1 Q.B. 100, C.A. it was held that leave to appeal on one point
having been given by the Divisional Court, the Court of Appeal confined the argument to the point as to which leave to appeal had been given, and refused to allow the appellant to go into another point which had been raised in the county court, and in the Divisional Court. Per Collins L.J. at p. 102 “We have no jurisdiction in this case except as to the point on which leave to appeal has been given by the Divisional Court.” See also Sanderson v. Blyth Theatre Co. [1903] 2 K.B. 533 at p. 540, C.A. In this case, however, the substantial questions of law raised in grounds (1), (2) and (3) are so involved with other issues of fact, and mixed law and fact that if the points on which leave to appeal may be granted are limited, I apprehend that the Supreme Court would not be able to do full justice to this case.
I would therefore grant the application on the grounds of appeal as filed, and I do so order.
Leave to appeal granted.
JUDGMENT OF JIAGGE J.A.
I agree.
JUDGMENT OF SOWAH J.A.
I also agree.
DECISION
Application granted.
S. E. K.
