HIGH COURT, ACCRA
Date: 20 DECEMBER 1973
ABBAN J
CASES REFERRED TO
(1) Yartey and Oko v. Construction and Furniture (West Africa) Ltd. [1962] 1 G.L.R. 86, S.C.
(2) In re Land at Nkwantamang, Christian Boi Owusu v. Manche of Labadi, Divisional Court, 9 February 1932, unreported.
(3) Bruce v. Quarnor [1959] G.L.R. 292.
(4) Ohimen v. Adjei (1957) 2 W.A.L.R. 275.
(5) Amarteifio v. Ankrah [1959] G.L.R. 230.
(6) Ankrah v. Aryeh (1957) 3 W.A.L.R. 104, PC.
(7) Vanderpuye v. Botchway (1956) 2 W.A.L.R. 16, P.C.
(8) R.v. All Saints, Southampton (1828) 7 B. & C. 785; 1 Man. & Ry. K.B. 663; 1 Man. & Ry. M.C. 351; 6 L.J.M.C. (o.s.) 53; 108 E.R. 916.
(9) R.v. Pugh (Judge); Ex parte Graham [1951] 2 K.B. 623; [1951] 2 All E.R. 307; 115 J.P. 425; [1951] 2 T.L.R. 253; 95 S.J. 431; 49 L.G.R. 659, D C.
(10) Briscoe v. Stephens (1824) 2 Bing. 213; 3 L.J.C.P. (o.s.) 257; 130 E.R. 288.
(11) Hausa v. Dawuda [1961] G. L. R. (Pt. II) 550.
(12) Quist v. Kwantreng [1961] G.L.R. (Pt. II) 605.
(13) Zotorglo III v. Gabienu and, Akpakli [1962] 2 G.L.R. 155.
(14) Sarbah v. Afua, High Court, Accra, 6 November 1964, unreported.
(15) Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.
NATURE OF PROCEEDINGS
ACTION for a declaration of title to a piece of land and perpetual injunction to restrain the defendant. The facts are sufficiently stated in the judgment.
COUNSEL
J.C .Armah for the plaintiff.
W. A. N. Adumua-Bossman for the defendant.
JUDGMENT OF ABBAN J
The plaintiff in this action is claiming a declaration of title to a piece of land situate and lying at a place commonly known and called Odumtia. The said land is near Amasaman on the Accra — Nsawam road, and it comprises an area of about 180 acres. The plaintiff is also claiming perpetual injunction.
I must remark that the evidence given by the plaintiff in support of her claim was quite simple and straightforward, but she was subjected to a lengthy cross-examination on matters most of which were irrelevant. The plaintiff s case is that her father, called Quaye Mensah, was the first to occupy the land in dispute. The father cultivated the land and founded a village thereon. The father named the village and the surrounding lands after an odum tree which the father found on the land; and that is why the village is called Odumtia. The said odum tree is still standing on the land. During the father’s lifetime, the father believed this odum tree was a fetish, and so the father worshipped it. When the plaintiff grew up she became a fetish priestess for this odum tree.
The plaintiff s father was an Asere man from Abola quarter and her father’s father, also an Asere man, came from the same Abola quarter. The plaintiff herself is an Asere woman, and she was born in this Odumtia village where she lived all her life. She was about 100 years old at the time she gave her evidence in this case.
The plaintiff s father died in or about 1923. The plaintiff said the father was not survived by brothers and sisters. Her father’s father also had no brothers. When the plaintiff grew up she did not see any sisters
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of her said grandfather. On the death of the plaintiff s father a relative of her father, called Nii Adu Comey, succeeded the father according to custom and the plaintiff having buried the father, the properties of the father, including the land in dispute, were handed over to the plaintiff. She also claimed that apart from being made successor to those properties, she was also made head of Quaye Mensah’s family. She contended that since she succeeded to the land in dispute, she has been in absolute possession thereof. But the defendant and his people have recently been interfering with her quiet enjoyment and have been doing certain things which are tantamount to disputing her title to the land.
The plaintiff died after she had given her evidence but before the defendant closed his case; and the plaintiff s son, one Arday Armah, was substituted for the plaintiff without opposition from the defendant. This Arday Armah gave evidence as the plaintiff’s first witness. He said his mother was the sole owner of this land and the mother used to send him (the plaintiff s first witness) to collect tolls from those to whom his mother had granted portions of the land for farming purposes. A man, called Kojo Abew (the plaintiff s second witness) who is about 66 years old, used to accompany the plaintiff s son (the plaintiff s first witness) to collect the said tolls. Kojo Abew’s father and the father of the plaintiff were first cousins. Kojo Abew was born and bred in this Odumtia village. He grew up to see the plaintiff s father, Quaye Mensah, in full control and possession of the Odumtia land. A village, known as Kojo Ashong, is near Odumtia land. The chief of this village, Nii Kojo Ashong (the plaintiff s third witness) was called to give evidence. His evidence substantially supported the claim of the plaintiff.
The defendant did not give evidence himself. One Nii Tetteh Atafuah testified on his behalf. Before dealing with the evidence of the defendant’s witnesses, I should point out that the defence was pleaded in detail in paragraphs (4), (5), (6) and (7) of the statement of defence, filed on 10 December 1964. Those paragraphs are very crucial and I will therefore set them out in extenso:
“(4) In further answer to paragraph (2) of the statement of claim, the defendant will contend that the Odumtia land which is part of a long stretch of land formerly occupied and settled by the Akwamus became part of Asere stool lands after the Akwamus were defeated and driven from the land and that it was the said stool which granted a usufructuary interest or possessory title in the said land to the great Captain Nii Arday Sarbah, the founder of the Arday family, and a great war lord or captain under the Asere stool in recognition of his services in the Akwamu wars.
(5) The defendant will further contend that the Asere stool appointed the great Captain Nii Arday Sarbah, custodian of a large stretch of land from Amasaman to the Densu River and that Captain Nii Arday Sarbah personally occupied and
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settled on the Ardayman and Odumtia lands, and from there supervised and acted as watchdog over the rest of the land granted by the stool and occupied by a number of the Akwamu refugees such as Amoa and Achia.
(6) The defendant denies paragraph (3) of the statement of claim and says that on the death of Captain Nii Arday Sarbah, the Odumtia land as well as other lands acquired by Nii Arday became the family property of the Arday family inherited by his children and that Quaye Mensah alias Mensah Arday and his brothers and half brothers later on succeeded to this family property including the Odumtia land.
(7) The defendant says and avers in further answer to paragraph (3) of the statement of claim, that all the children and grandchildren of Captain Nii Arday including the said Quaye Mensah alias Quaye Mensah Arday one of the grandchildren, lived, died and were buried in that village and that all the children and grandchildren had farmed with their father or fathers, uncle or uncles on the Ardayman and Odumtia lands during their lifetime.”
The defendant, in paragraphs (13) and (14) of his amended statement of defence, pleaded that in or about 1963 the plaintiff was sued in the Amasaman Local Court for granting portions of Odumtia land and ponds on the said land to strangers for farming and fishing respectively, and collecting customary tolls in respect thereof without the consent of the defendant. Judgment was delivered against the plaintiff on 25 January 1964 by the local court. The defendant therefore contended that the plaintiff was estopped by that judgment from claiming title to the Odumtia land. In a counterclaim, the defendant asked for a declaration of title, the recovery of possession of the Odumtia land and a perpetual injunction. On 8 February 1965, the defendant filed a further amended statement of defence, contending that the plaintiff, by claiming absolute title to the land, has “committed customary forfeiture” and has therefore “forfeited any right to any portion of the Odumtia land which the plaintiff might have had as a member of Arday Sarbah family.”
In support of these averments, the representative of the defendant, Nii Atafuah, said the land in dispute belonged to the original Nii Arday Sarbah; and on his death it went to his children and grandchildren (including the plaintiff s father), and that the land was not the self-acquired property of the plaintiff s father. He also denied that the plaintiff succeeded to this land. He said the plaintiff s father had a brother called Kwaku Akon, and this Kwaku Akon succeeded to the properties of the plaintiff s father when the father died. On the death of Kwaku Akon, one Abew succeeded to the properties of both Kwaku Akon and the plaintiff s father and those properties never included the Odumtia land in dispute.
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It is interesting to note that Nii Atafuah claimed to be the head of the plaintiff s family and he claimed to have appointed Arday Armah, the plaintiff s first witness, to succeed to the properties of Okomfo Afuah when Okomfo Afuah died. Yet Atafuah did not know the properties left by Okomfo Afuah and to which the plaintiff s first witness was supposed to have succeeded. Owoo Tetteh the defendant’s second witness stated that the plaintiff s father had five brothers and these brothers (together with the plaintiff s father) were in charge of the two villages, Ardayman and Odumtia, during their lifetime and the plaintiff cannot therefore claim the Odumtia land as her father’s self-acquired property. To Owoo Tetteh and Ruben Okai Quaye, the defendant’s third witness, the Odumtia land belonged to Nii Arday, the predecessor in title of the defendant. Owoo Tetteh stated, categorically, that it was Dedetse Okai and Tetteh Kofi who founded the village of Odumtia.
I think the evidence of the defendant’s witnesses is particularly open to criticism in that it failed even to lay the foundation for establishing the crucial fact as contained in paragraphs (4) and (5) of the statement of defence set out above, and on which, to a great extent, the defendant’s case depended. Strange as it may sound, apart from cross-examining the plaintiff and her witnesses as to the history of the land, the defendant did not himself lead any evidence to substantiate his allegations in the statement of defence concerning the granting of the disputed land to the so called “great Captain Nii Arday Sarbah by Asere stool in recognition of his services in the Akwamu wars.” No elder of the stool of Asere was called to testify.
However, from the evidence, I find that when the father of the plaintiff, Quaye Mensah, was alive he was in occupation and possession of the disputed land. I am of the firm belief that the said father (even though he might have at one time lived at Ardayman village) occupied the said Odumtia land as vacant land, cultivated it, and founded a village thereon and named it Odumtia. The plaintiff gave her age as a 100 years. She was almost bedridden when she gave her evidence, but I found that her mind was very alert and she spoke very clearly. I think the plaintiff was bom in this Odumtia village long after her father, Quaye Mensah, had founded the village and had brought the surrounding lands described in the writ into his effective and exclusive possession.
It seems to me that Quaye Mensah and Quaye Mensah’s father, as well as the predecessors of the defendant, were all subjects of the Asere stool and that the Odumtia land in dispute and the lands in and around the Ardayman village formed part and parcel of Asere stool land. But I do not believe that the Asere stool granted any land at Odumtia or even at Ardayman to any warlord, called Captain Nii Arday Sarbah, for the so-called services in the Akwamu wars. The land at Odumtia had and has never been in the possession or occupation of any warlord. As I have already found, the land was occupied by the plaintiff s father as vacant land, and he continued to be in exclusive possession and control thereof for many years before his death. Consequently, even though
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the absolute title to the land might be in the Asere stool, I am of the opinion that the plaintiff s father acquired usufructuary title to the disputed land and, for all practical purposes, he became well recognised as the owner in possession.
In Yartey and Oko v. Construction and Furniture (West Africa) Ltd. [1962] 1 G.L.R. 86 at p. 97, S.C. Adumua-Bossman J.S.C. referred to the judgment in an acquisition case, entitled In re Land at Nkwantamang, Christian Boi Owusu v. Manche of Labadi, Divisional Court, 9 February 1932, unreported. where Deane C.J. stated:
“Now there is no doubt that the Courts acting on equitable grounds have recognised estates as having been carved out of stool lands. When persons, subjects of the stool have settled down upon stool lands and have for a long period of time so identified themselves with the lands as to become well-recognised as the owners, the Courts, in spite of the fact that the Statutes of Limitations have no application between Natives, so that mere occupation alone gives no right as against the owner, have always held that such occupation, if coupled with circumstances which raise an equity in favour of the occupier, should enure to the advantage of the occupier as against any one who seeks to oust him from such occupation’.”
The authorities on this statement of the law abound. In Bruce v. Quarnor [1959] G.L.R. 292, Ollennu J. (as he then was) in his judgment at pp. 297-298 said:
“Thus, even if the plaintiff’s possession and occupation of the land was not upon actual grant, his possession and occupation as a subject of the stool is good title, and it will take precedence over any grant which the stool may purport subsequently to make of any portion of that land.”
Another case which readily comes to mind is Ohimen v. Adjei (1957) 2 W.A.L.R. 275. At p. 279 the learned judge stated:
“The stool holds the absolute title in the land as trustee for and on behalf of its subjects, and the subjects are entitled to the beneficial interest or usufruct thereof and have to serve the stool. Each individual or family is regarded in the broad sense as the owner of so much of the land as it is able by its industry or by the industry of its ancestors to reduce into possession and control. The area of land so reduced into the lawful possession of the individual or family, and over which he or they exercise a usufructuary right, is usually called his property.”
(The emphasis is mine.) I therefore hold that the Odumtia land in dispute was the self-acquired property of Quaye Mensah, the plaintiff s father.
The plaintiff sued in two capacities, namely, as head of Quaye Mensah’s family, and as the successor of Quaye Mensah; and I think she was able to prove conclusively the latter capacity. It seems to me that Nii Adu Comey was a distant relative of the plaintiff s father. He
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was not a blood relative of the plaintiff s father; and I find that the plaintiff s father had no brothers and sisters, neither did he have any maternal family. It was the plaintiff who buried her father. Quaye Mensah, and it was Nii Adu Comey (and not Kwaku Akon or Abew) who managed the affairs of Quaye Mensah when the latter died. I again find that it was Nii Adu Comey who appointed the plaintiff to succeed to all the self-acquired properties of Quaye Mensah, including the land in dispute.
In my view, the said appointment was in conformity with Ga customary law. Because, as I said, the plaintiff s father and no maternal family, and in absence of proof of any special custom, the plaintiff, in those circumstances, was entitled to succeed to her father’s self-acquired property and she was therefore rightly made successor thereto. It is well settled that in Ga customary law, for purposes of succession to property, the family is the maternal family and succession is in the maternal line. But where there is no maternal line, as in the present case, the children succeed to the whole of their father’s self-acquired property: see Amarteifio v. Ankrah [1959] G.L.R. 230 and Ankrah v. Aryeh (1957) 3 W.A.L.R. 104, P.C.
The plaintiff is therefore right in contending that she was validly appointed to succeed to the land in dispute. I reject the evidence of the defendant’s witnesses that the plaintiff was never appointed to succeed to the disputed land. The defendant’s witnesses told tissues of lies, and they seemed not to appreciate the difference between truth and falsehood. Ruben Okai Quaye the defendant’s third witness, for example, went to the extent of telling the court that the plaintiff is his sister. He repeated that averment under cross-examination where he stated, “I am a brother to Okomfo Afuah. We come from the same father.” But when he was strenuously cross-examined he came out with the truth and said, “Quaye Mensah was not my father. So I am not Quaye Mensah’s son … I and Okomfo Afuah are not children of the same father.” It is clear that these witnesses made unsuccessful attempts to mislead the court.
The plaintiff s father died over 40 years ago, and until the litigation in the Amasaman Local Court arose nobody, for all those years, had challenged the plaintiff s right to succeed to the land in dispute. To my mind, her long continued and undisturbed possession was quite consistent with her rights as successor. In fact, Tetteh Atafuah, the defendant’s representative, eventually admitted in his evidence that the plaintiff has been in exclusive possession of the land with her children and grandchildren. I will here quote a portion of Atafuah’s evidence, under cross-examination, where he said, ‘What I know is what I have told the court. I only know that Okomfo Afuah [the plaintiff] lived there with her children and grandchildren exclusively and they are still there. I do not know anything about the village.”
In respect of the Odumtia village itself, Ruben Okai, the defendant’s third witness, also admitted that the defendant and his predecessors
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never had buildings in that village. I am convinced that all the buildings in that village belong to the plaintiff, her children and grandchildren. No one from Ardayman village has a building at Odumtia village, apart from Dedetse Okai, and even in his case, it was the plaintiff who granted him leave and licence to build.
Furthermore, when the defendant became successor, she let out portions of the disputed land to the defendant’s people on farming tenancies to the knowledge of the defendant and his witnesses. The plaintiff had been collecting tolls or tributes from those grantees and from those who fish in the rivers, streams or ponds which are on the land. It was the plaintiff who, as the owner of the land, granted permission to the surrounding villages to join Odumtia village to construct and establish a market on the disputed land. If the defendant’s family knew that the land belonged to them, why did the family wait for over 40 years before suing the plaintiff in the Amasaman Local Court? Again, if the defendant’s family genuinely believed that the land together with the village belonged to the family, why did they attempt to sell it to satisfy the judgment debt in the Amasaman case?
Great effort was made to show that only the houses in Odumtia village were going to be sold and not the land itself. But I think what the defendant intended to sell was the land together with the houses in the village. The boundaries of the area to be sold were given by the defendant’s counsel to the registrar of the said local court who clearly stated the same in the attachment notice (exhibit A). Some of the boundary owners appearing on the said exhibit A agree with the boundary owners as stated in the plaintiff s writ of summons. I am clearly of the view that the plaintiff has been in undisputed possession of this land and for a long period of time she has openly exercised various acts of ownership in her capacity as a successor, and the defendant should not, at this eleventh hour, be allowed to deny the right of the plaintiff to the land.
The judgment of the Amasaman Local Court, to which I have already referred, was pleaded as an estoppel per rem judicatam. The defendant seemed to have had a lot of confidence in that judgment with the result that in the course of his address, learned counsel for the defendant stated, ‘We are relying very particularly on the plea of res judicata.” The record of proceedings of the local court, embodying the said judgment, was tendered as exhibit D. Learned counsel for the plaintiff contended that the said judgment was in respect of a succession matter and not of a land matter, and since the present case is a land matter the judgment of the local court cannot estop the plaintiff from making the claim herein. The writ in the local court can be found at pp. 1 and 2 of the record of proceedings (exhibit D).
I need not emphasize that it is the substance of the writ and not its form which must guide the court when determining the issue as to whether a suit is a succession or a land matter. That is, in order to determine into what category a particular suit falls “the court must apply the test of what is the real issue between the parties and not look
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only at the wording” of the writ: see Vanderpuye v. Botchway (1956) 2 W.A.L.R. 16 at p. 21, P.C.
The writ of summons in question claimed, among other things, that the plaintiff (as the defendant in that suit) had usurped the rights of the defendant by collecting tolls from those who farmed on the land, and who fished in the ponds or streams on the land. I think any suit, the substance of which is a claim to a right to rivers, streams, creeks, including the right to fish in such waters, is a land suit: see Ollennu’s Customary Land Law in Ghana, p. 1. I therefore hold that what was before the local court was a land cause and not a succession matter as contended by learned counsel for the plaintiff. I also find that the land, which was the subject-matter of dispute in the local court, is the same as the land in dispute in the present case, and the parties are the same in both cases.
The most important question, however, is whether the said local court judgment is a valid judgment. A party relying on a judgment to found a plea of estoppel per rem judicatam must, first of all, prove that the judgment in question was given by a court of competent jurisdiction, and that it is still subsisting. In The Doctrine of Res Judicata by Spencer Bower and Turner (2nd ed.), para. 113 at p. 92, the learned editor has clearly stated the legal position. He says:
“Competent jurisdiction is an essential condition of every valid res judicata, which means that, in order that a judicial decision relied upon, whether as a bar, or as the foundation of an action, may conclusively bind the parties, or (in the case of in rem decisions) the world, it must appear that the judicial tribunal pronouncing the decision had jurisdiction over the cause or matter, and over the parties, sufficient to warrant it in so doing.”
Indeed, in the case of an inferior court, like the local court, it is even assumed that it has no competent jurisdiction to pronounce the judgment upon which the plea of res judicata is founded, until the contrary is proved. For in the “inferior courts and proceedings by magistrates the maxim omnia praesumuntur rite esse acta does not apply to give jurisdiction” per Holroyd J. in R. v. All Saints, Southampton (1828) 7 B. & C. 785 at p. 790. See also R. v. Pugh (Judge); Ex parte Graham [1951] 2 K.B. 623, D.C. In the latter case, Lord Goddard C.J. in the course of his judgment at p. 629 of the report, referred to the case of Briscoe v. Stephens (1824) 2 Bing. 213 and said:
“Consideration of the judgment in that case shows clearly enough that, if the decision of an inferior court is pleaded as estopping a plaintiff from proceeding, the defendant must first adduce by his plea facts which will show that the inferior tribunal had jurisdiction, and the plaintiff can reply that there was no jurisdiction . . .”
The record of proceedings (exhibit D) must therefore be closely examined to find out whether the local court of Amasaman which pronounced the
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said judgment was competent to do so. The writ of summons in the case was issued on 2 July 1963, and the judgment was delivered on 25 January 1964. At that material time the jurisdiction of the local courts to hear land causes was governed by section 98 of the Courts Act, 1960 (C.A. 9), as amended by section 27 of the Courts (Amendment) Act, 1962 (Act 130). It will be observed that even though Act 130 was passed on 20 June 1962, it came into effect on 1 September 1962: see the Courts (Amendment) Act (Commencement) Instrument, 1962 (L.I. 210).
Section 98 of the Courts Act, 1960 (C.A. 9), as amended, by section 27 of the Courts (Amendment) Act, 1962 (Act 130), outlined the jurisdiction of the local courts in land causes as follows:
“(98). (1) The civil jurisdiction of a Local Court shall be as follows:—
(a) suits relating to ownership, possession or occupation of land, where the law applicable is exclusively customary law: . . .
(b) Where it appears that the matter in issue in any area in which a Local Court is situated relates to land or an interest in land, or is a succession cause involving land, which exceeds the value of £G200, such matter shall be determined by the Judge of the High Court for the time being exercising jurisdiction over such area and no Local Court shall have the power to exercise jurisdiction in respect of such matter.
(3) If there is any dispute between the parties on the question whether or not the value of such
matter exceeds £G200, such question shall be submitted by the Local Court for the decision of the Judge of the High Court referred to in subsection (2) and his decision thereon shall be final and conclusive.”
(The emphasis is mine.)
On the examination of the record of proceedings (exhibit D), it will be found that the defendant (as the plaintiff) closed his case on 26 September 1963, and the plaintiff (as the defendant) opened her defence on the said 26 September. After the plaintiff had been cross-examined, she filed a written submission, contending that the land in dispute comprised some 180 acres, and that its value was more than £G200. The following was recorded by the local court magistrate at p. 28 of the record of proceedings:
“Defendant absent. No information. Defendant has, however filed on 26 November 1963, a matter submission [sic.] declaring that she is the rightful successor to her late father Quaye Mensah whose land comprising some 180 acres lying and being at Odumtia. And that she has been such a successor since the death of her late father in 1923. Furthermore she contends that the value of the
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land involved exceeds £G200 and as such this court has no jurisdiction to entertain this case, vide section 27
(2) and (3) of the Courts Act.”
(The emphasis is mine.) On the same page 28, the magistrate stated that the defendant (as the plaintiff) had also submitted a written reply refuting the allegation that the value of the land was over £G200.
It was therefore obvious, at that stage, that there was a dispute between the parties to the value of the land, and by the peremptory provisions of section 98 (3) of the Courts Act, 1960, as amended, and as set out above, the magistrate ought to have referred the matter to the High Court for determination. But he refused to comply with those provisions and made the following order:
“In view of the defendant’s deliberate refusal to attend court on 21 November 1963, and today [14 December 1963] in spite of service of hearing notice on her, coupled with the fact that the case of the plaintiff has closed and evidence of the defendant taken and duly cross-examined by the plaintiff, having only the witnesses for the defence, apart from inspection of the stool house at Ardayman, and the running of the ferry at Odumtia and such other matters since 8 October 1963, 1 shall be compelled to deliver judgment in the case on the evidence before me on 11 January 1964.”
(The emphasis is mine.) It should be noted that on the said 11 January 1964, the magistrate did not deliver the judgment and the case was again adjourned, at his instance, to 25 January 1964. It was on the said 25 January that the judgment was delivered.
I am clearly of the opinion that the local court magistrate was not competent to proceed with the hearing of the case any further after the objection had been taken as to his jurisdiction, based on the value of the land. At that stage, his jurisdiction was completely ousted, and apart from making an order referring the case to the High Court, any purported order made by him, or for that matter any judgment delivered by him thereafter was ultra vires.
The fact that the defendant gave evidence before raising the question as to the value of the land could not be a valid excuse for refusing to refer the matter to the High Court. The local court was a court of inferior jurisdiction. It had limited jurisdiction and an objection to its jurisdiction could be taken at any stage of the proceedings, and even on appeal. In Hausa v. Dawuda [1961] G.L.R. (Pt. II) 550, the objection was taken to the jurisdiction of the local court at the close of the plaintiff s case, but the court went on and heard the case. On appeal to the High Court, Ollennu J. (as he then was) at p. 552, said:
“In the case of an inferior court, the onus lies upon the party which alleges jurisdiction in it to show that it is vested with competent jurisdiction. Since by section 98 (2) a local court has limited jurisdiction in land causes, the onus is upon every plaintiff who institutes
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a land cause in the local court to prove that the value of the land does not exceed £G200 and therefore the court is vested with the necessary jurisdiction. That being the case the moment a defendant objects to the jurisdiction of a local court in a land cause on the grounds of value, the proceedings must stop, unless the plaintiff establishes jurisdiction in the court.
The local court magistrate therefore erred when he overruled the submissions of the defendant on the question of his jurisdiction and proceeded to exercise jurisdiction in spite of the objection and the failure of the plaintiff to show that the court is vested with jurisdiction.”
See also Quist v. Kwantreng [1961] G.L.R. (Pt. II) 605 at p. 613 and Zotorglo III v. Gabienu and Akpakli [1962] 2 G.L.R. 155. It must be pointed out that all the three cases cited above were decided when the old section 98 of the Courts Act, 1960 (C.A. 9), was in operation and before it was amended by section 27 of Act 130. All the same, the principles enunciated in these cases were applicable to land suits which were heard by the local courts after the said Act 130 had come into effect.
In the circumstances, I hold that at the time the local court magistrate gave the judgment on which the plea of estoppel was based, he had been stripped of jurisdiction and he was therefore not competent to give any judgment in the matter. That being the case, the said judgment was null and void and of no legal consequence. It follows that there had been no adjudication between the parties concerning the land in dispute and this court was therefore right in hearing the case on its merits. At p. 99, para. 123 of The Doctrine of Res Judicata (supra) the learned editor states:
“For where a statute has prescribed the subject-matter of the jurisdiction of an inferior court, and that court erroneously decides that it has jurisdiction, its decision cannot be effective to bestow upon itself a jurisdiction which the statute never gave; and a superior court may subsequently, on the same issue being raised in a later action, decide that there was no jurisdiction in the inferior court to deal with the matter in dispute, and accordingly may proceed to make such fresh adjudication between the parties as may be just.”
(The emphasis is mine.)
I am aware that the plaintiff appealed against the local court judgment to the High Court. The High Court, constituted by Boison J. (as he then was) in Sarbah v. Afua, High Court, Accra, 6 November 1964, unreported, found that the judgment was given without jurisdiction, but the learned judge, nevertheless, dismissed the appeal on the technical ground that the notice of appeal was filed out of time. The said judgment of the High Court, dated 6 November 1964, was not tendered in evidence. But a certified true copy thereof was attached to the plaintiff s affidavit
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which was filed on 11 April 1968, in opposition to the defendant’s application for interim injunction. Getting to the latter part of the said judgment, the learned High Court judge expressed himself as follows: “But there is another interesting point in this case. At page 28 of the record of proceedings the defendant appellant contended, inter alia, that the value of the land is more than £G200 . . . As soon as the value of the land was raised his jurisdiction was ousted unless the High Court decided that the value of the land to be less than £G200. The local court magistrate therefore had no jurisdiction when he proceeded to give judgment in the case. Had the defendant-appellant properly filed his notice of intention within time or asked for extension of time of which was granted it is clear that on the merits the appeal would have been allowed but the defendant-appellant was out of time so this court cannot entertain this appeal. The appeal is accordingly dismissed.”
(The emphasis is mine.)
With great respect to the learned High Court judge, since it was crystal clear to him that at the time the judgment was delivered, the local court had completely been deprived of jurisdiction, the judgment, as I have said, was a nullity and the appellant was entitled, ex debito justitiae, to have it set aside. The learned judge therefore had an inherent jurisdiction, even on his own motion, to set it aside irrespective of the fact that the notice of appeal was filed out of time. Because “there is no time limit in which the party affected by a void order or judgment may apply to have it set aside”: Mosi v. Bagyina [1963] 1 G.L.R. 337 at p. 347, S.C. per Akufo-Addo J.S.C. (as he then was).
The dismissal of the appeal by the High Court on 6 November 1964, did not therefore convert the local court judgment into a valid judgment. A judgment which is void is void for all time. However, out of abundance of caution, I will here and now and on my own motion, set aside the said local court judgment, and it is accordingly set aside. In the result, the plea of estoppel per rem judicatam must fail.
On the totality of the evidence, I am satisfied that the plaintiff has proved her title to the land in dispute and she is entitled to all the reliefs sought. In the circumstance, the counterclaim will be and is hereby dismissed, and judgment is entered for the plaintiff, declaring her the owner of the land fully described in the writ of summons. I further grant the plaintiff perpetual injunction restraining the defendant, his agents, servants, workmen or labourers from entering the land in dispute, or from interfering in any way with the plaintiff s ownership and possession. The plaintiff is awarded counsel’s costs of 0550.00. All other costs should be taxed.
DECISION
Judgment for the plaintiff.
S. O.
