HIGH COURT, SUNYANI
DATE: 9 JANUARY 1967
BEFORE: BAIDOO J.
CASES REFERRED TO
(1) Omanhene of Sefwi-Wiawso v Donkor [1965] G.L.R. 462.
(2) Dyson v. Attorney-General [1911] 1 K.B. 410; 81 L.J.K.B. 217; 105 L.T. 753; 27 T.L.R. 143; 55
S.J. 168, C.A.
(3) Cross v. Earl Howe (1892) 62 L.J.Ch. 342; 3 R. 218.
(4) Fletcher v. Bethom (1893) 68 L.T. 438.
(5) Tucker v. Collinson (1886) 16 Q.B.D. 562; 55 L.J.Q.B. 224; 54 L.T. 128.
(6) Mangena v. Wright [1909] 2 K.B. 958; 78 L.J.K.B. 879; 100 L.T. 960; 25 T.L.R. 534; 53 S.J. 485.
(7) Peru Republic v. Peruvian Guano Co. (1887) 36 Ch.D. 489; 56 L.J.Ch. 1091; 57 L.T. 337; 36 W.R. 217; 3 T.L.R. 848.
(8) Davey v. Bentinck [1893] 1 Q.B. 185; [1891-94] All E.R. Rep. 691; 62 L.J.Q.B. 114; 67 L.T. 742; 41 W.R. 181; 4 R. 144, C.A
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NATURE OF PROCEEDINGS
RULING on an application under Order 25, r. 4 of L.N. 140A that an action for arrears of rent in respect of stool land be struck out. The facts are fully stated in the ruling.
COUNSEL
I. E. Osei Bonsu for the plaintiff.
P.D. Anin for the defendant.
JUDGMENT OF BAIDOO J.
The plaintiff ‘s claim against the defendant as it appears on the specially endorsed writ of summons is as follows:
“The plaintiff’s claim against the defendant is for the amount of £G600 or ¢1,440.00 being arrears of customary rent owing from the defendant, as the head and agent of the people living on all that piece or parcel of land situate lying and being at Bomaa in the Dormaa Traditional Area in Brong-Ahafo known as Brosankro lands to the plaintiff as the occupant of the paramount stool of Dormaa to which the said landbelongs; which customary rent, at the rate of ; £G100 or ¢240.00 per annum is payable in respect of the aforesaid land by the defendant to the plaintiff under a customary agreement made between the plaintiff’s predecessor in title and the defendant’s predecessor in title in 1924 whereby the said land is occupied by the defendant and his people as tenants from year to year of the plaintiff together with interest on the said amount at the rate of five per cent per annum from the date on which each part of the said amount became due and payable until the date of judgment. PARTICULARS ARE AS FOLLOWS:
1960 December 31st rent due £G100 or ¢240.00
1961 December 31st rent due £G100 or ¢240.00
1962 December 31st rent due £G100 or ¢240.00
1963 December 31st rent due £G100 or ¢240.00
1964 December 31st rent due £G100 or ¢240.00
1965 December 31st rent due £G100 or ¢240.00
_____ _______
£G600 ¢1,440.00
_____ _______
And the plaintiff claims £G600 or ¢1,440.00 plus interest thereon as aforesaid.”
The action obviously contravenes various provisions of the Administration of Lands Act, 1962 (Act 123). It is provided under section 17 (1) and (2) as follows:
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“17. (1) All revenue from lands subject to this Act shall be collected by the Minister and for thatnpurpose all rights to receive and all remedies to recover that revenue shall vest in him and, subject to the exercise of any power of delegation conferred by this Act, no other person shall have power to give a good discharge for any liability in respect of the revenue or to exercise any such right or remedy.
(2) Revenue for the purposes of this Act includes all rents, dues, fees, royalties, revenues, levies, tributes and other payments, whether in the nature of income or capital, from or in connectionMwith lands subject to this Act.”
The Administration of Lands Act, 1962 (Act 123), will hereafter simply be referred to by me as Act 123. It is clear from section 17 (1) and (2) of Act 123 that the only person who can collect or sue for rents in respect of any lands subject to Act 123 is the minister or any person whom the minister has appointed.
The plaintiff ‘s statement of claim shows that the plaintiff is claiming, as the occupant of the paramount stool of Dormaa, customary rents in respect of lands attached to his stool. The land which forms the subject-matter of the action is therefore, on the plaintiff’s own admission, stool land and is therefore caught by Act 123, which, as is stated immediately after the title to the Act, was passed to consolidate with amendments the enactments relating to the administration of stool and other lands. Section 31 of thenAct gives the definition of stool land in the following terms: “Stool land’ includes land controlled by any person for the benefit of the subjects or members of a Stool, clan, company or community, as the case may be and all land in the Upper and Northern Regions other thannland vested in the President and accordingly ‘Stool’ means the person exercising such control.” It was contended by counsel for the plaintiff that section 17 of Act 123 will operate to prevent theoccupant of the stool from suing for rents only in respect of those stool lands which have been vested in the President (now the National Liberation Council (N.L.C.)) as provided under section 7 of Act 123. This contention is patently erroneous and I reject it. Section 7 of Act 123 reads as follows: “7. (1) Where it appears to the President that it is in the public interest so o do he may, by executive instrument, declare any Stool land to be vested in him in trust and accordingly it shall be lawful for the President, on the publication of the instrument, to execute any deed or do any act as a trustee in respect of the land specified in the instrument.
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(2) Any moneys accruing as a result of any deed executed or act done by the President under subsection (1) shall be paid into the appropriate account for the purposes of this Act.” Section 7 of Act 123 gives the President (now the N.L.C.) additional powers, over and above the power conferred on the minister under section 17 of the Act. Section 17 gives the minister (now the N.L.C. member responsible for lands), the exclusive right to collect or sue for rents in respect of all stool lands with power to delegate those rights of collecting or suing for rents to any person or persons the minister thinks appropriate or convenient. Where, however, the President has vested the stool land concerned in himself under section 7 then it is not merely the right to receive or sue for rents that is taken away from the chief concerned but the right to execute any deed of conveyance or to act as trustee if the land is also ‘taken away. Under customary law the occupant of the stool is the trustee of the stool land with the subjects of the stool as beneficiaries. Section 7 of Act 123 gives the President (now the N.L.C.) power to vest any stool land in the President by the publication of the necessary executive instrument whereupon the chief is ousted in his customary position as trustee, the President thereafter stepping into his shoes to execute a deed in respect of the stool land concerned or otherwise to assume full control of the stool land. A perusal of Act 123 will reveal that the object of the Act is to get the minister or his agent to collect all rents or revenue accruing from stool lands and to pay the same into a stool lands account: see section 18 of the Act. Out of the funds so paid into the stool lands account the minister is empowered to pay to the local authority within the area from where the rents were collected such amounts as the minister may by order determine having regard to the needs of the said local authority: see section 19 of the Act for the full details of this provision. Under section 20 traditional authorities and the people in the area are recognised as some of the beneficiaries of the central fund accumulated from the collection of rents from stool lands, while sections 21, 22 and 23 of the Act provide for the drawing up of a scheme for the application of the stool lands revenue collected by the minister.
It is clear from section 17 that a chief as such has no locus standi to sue for rents from stool lands and I agree with the decision of Koranteng-Addow J. in Omanhene of Sefwi-Wiawso v. Donkor [1965] G.L.R. 462 that an action by a chief as such for payment of rents from stool land offends section 17 of Act 123 which in effect prohibits such an action. Such an action could therefore be dismissed on that score alone.
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Learned counsel for the plaintiff has, however, contended that since the pleadings have already been concluded and many other issues raised on the summons for directions the action should proceed to trial. I agree that a number of collateral issues have been raised but the summons was filed mainly for one purpose, i.e. to claim arrears of rent issuing out of stool land. The writ was endorsed for only that single claim or relief. There is no claim for a declaration of title or for any other relief, and it is clear in all theNcircumstances of this case that all those collateral issues have been raised by the plaintiff for the purpose merely of bolstering up his claim for land rent. The defendant has, in his pleadings, traversed those issues of fact and the defendant is contending that the extent of the plaintiff’s stool land does not include anyportion of his (defendant’s) stool land. Here also it must be home in mind that by virtue of sections 3 and 4 of Act 123 the issue as to the extent and limits of the plaintiff ‘s stool land and whether it stretches to include any portion or portions of the defendant’s stool land has been left for determination exclusively by the minister.
The said sections 3 and 4 of Act 123 provide as follows:
“3. (1) Any question arising under this Act as to whether any lands are in a particular traditional areanshall be referred to the Minister who shall, after consulting the Traditional Council, determineNthe question for the purposes of this Act.
(2) A decision of the Minister under this section shall be final.
4. (1) The President may at any time require a Stool to declare his interest in any land and the Stool shall, within three months of being notified in writing of such requirement, send full particulars thereof to the Minister.
(2) In the event of any failure to declare an interest in any land within the period prescribed by subsection (1) of this section or of any question arising as to the existence or extent of any interest of the Stool in any land, the Minister may determine the existence or extent of any interest of the Stool in the land.
(3) A decision of the Minister under this section shall be final.”
In spite of all that has been discussed (supra) there is still that point of procedure which learned counsel for the plaintiff has taken and which needs careful consideration. Learned counsel for the plaintiff has urged strenuously that demurrers have now been abolished and that the defects relied on by the defendant should have
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been raised in the pleadings and that since those matters were not pleaded by the defendant and the summons for directions has already been taken out and the issues settled, the case should proceed to trial.
He cited the case of Dyson v. Attorney-General [1911] I K. B. 410, C.A. where it was held at p. 414 that Order 25 of the English Rules of the Supreme Court which is in the same terms as Order 25, r. 4 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), “ought not to be applied to an action involving serious investigations of ancient law and questions of general importance.”
On the question of the appropriate time for taking an objection under Order 25, r. 4, it his often been held that it should be made promptly. Thus in the case of Cross v. Earl Howe (1892) 62 L.J.Ch. 342, where the defendant applied to have the plaintiff’s statement of claim struck out as frivolous and vexatious, the court refused the motion which would otherwise have been acceded to, on the ground of the defendant’s delay in not making the application until the pleadings were closed and the action set down for trial. Another case in point is the case of Fletcher v. Bethom (1893) 68 L.T. 438; but as it was held in the case of Tucker v. Collinson (1886) 16 Q.B D. 562, per Brett M.R. the court has jurisdiction, even after the statement of defence and reply in an action have, been delivered, to order the action to be stayed as frivolous or vexatious under Order 25, r. 4. The important thing to bear in mind is that the matter has been left to the discretion of the court, which of course should be exercised judiciously (not capriciously) depending on the circumstances in each particular case. A reference to the wording of Order 25, r. 4 will show that the matter is really left to the discretion of the court. Order 25, r. 4 reads as follows: “The Court or a Judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.” (The emphasis is mine.)In my view where the objection being taken as to the propriety of the action is purely one of law, it is immaterial that the said objection has not been raised promptly, because apart from the rules of court the court has an inherent jurisdiction to stop any action which it considers to be an abuse of its process as being frivolous or vexatious or which is clearly not maintainable in law. Thus in the case of Mangena v. Wright [1909] 2 K.B. 958, it was held that a point of law may in special circumstances be ordered to be set down and argued before the trial, although it is not raised on the pleadings,
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As a matter of proper procedure applications under Order 25, r. 4 must be tried upon the allegations contained in the pleadings and no evidence or affidavit in support of the application is admissible. This is plain from the terms of the rule itself as was pointed out in the case of Peru Republic v. Peruvian Guano Co. (1887) 36 Ch.D. 489. It is when recourse is being had to the inherent jurisdiction of the court that an affidavit is necessary to bring the full facts to the notice of the court: see on this point Davey v. Bentinck
[1891-94] All E..R. Rep. 691, C.A.
Learned counsel for the plaintiff cited Order 19, r. 16 and urged that since the defendant did not plead the various defects he is relying on the defendant and must be deemed to have admitted that the plaintiff has satisfied all those conditions precedent — in effect that the plaintiff must be deemed to have the necessary power delegated to him by the minister under section 17 of Act 123 to collect, or sue for the rents claimed in this action. The court at that stage called the attention of the plaintiff’s counsel to the fact that an application for an amendment of the defendant’s pleadings had been filed and that the plaintiff’s locus standi was being challenged. Asked to disclose whether the minister or the N.L.C. member responsible for lands had delegated the necessary authority to the plaintiff herein to sue, the plaintiff’s counsel conceded or admitted that his client had in fact no such authority delegated to him.
In view of the application for amendment filed by the defendant about eight days before the hearing of this motion challenging the locus standi of the plaintiff I am of the view that this is a case where the inherent jurisdiction of the court must be invoked, because on the plaintiff’s own pleadings, he is suing not as the duly constituted agent of the minister or the N.L.C. member responsible for lands. The plaintiff is in effect still claiming to be entitled to collect rents from lands which he claims to be attached to his stool. The action contravenes section 17 of the Administration of Stool Lands Act, 1962 (Act 123), which prohibits such claims. The interlocutory order made by the former judge at the commencement of the action was unfortunately per incuriam. If his attention had been directed to section 17 of Act 123 he certainly would not have ordered that ¢1,000.00 on account of the plaintiff’s claim be deposited in court as a condition of allowing the defendant’s liberty to defend the action: The plaintiff ‘s claim in view of section 17 of the Administration of Stool Lands Act, 1962 (Act 123), is not maintainable and same is struck out. Let a certified copy of this judgment together with the pleadings be submitted to the N.L.C. member responsible for lands for him
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to take such action as he thinks appropriate in accordance with the provisions of sections 3 and 4 of Act 123.
DECISION
Action struck out
S. O.
