HIGH COURT, CAPE COAST
Date: 22 JULY 1974
EDWARD WIREDU J
NATURE OF PROCEEDINGS
PRELIMINARY OBJECTION to the jurisdiction of the High Court to continue the hearing of the plaintiffs’ action for recovery of possession of land, commenced prior to the acquisition of the said land by the government by E.I. 61 of 1974 made under Act 125. The facts arc sufficiently stated in the ruling.
COUNSEL
U.V. Campbell for the plaintiffs.
J.A. Dawson, Assistant State Attorney, for the second defendant.
JUDGMENT OF EDWARD WIREDU J
On 18 June 1974 I dismissed an objection raised by the second defendant’s counsel to the jurisdiction of this court to entertain the plaintiffs’ action and reserved my reasons which I now proceed to deliver.
[p.194] of [1974] 2 GLR 193
The brief facts of this case are that the plaintiffs’ family claiming to be owners of a parcel of land commonly known as the Twifu Hemang estate issued out of this court on 5 October 1973 a writ of summons against the defendants for the following reliefs:
“(a) Recovery of possession of all that piece or parcel of land known as Twifu Hemang estate situate at Twifu Hemang in the Cape Coast District.
(b) An account by first defendant of all rents, royalties, tributes, tolls and other proceeds from the land between 1970 to date of determination in 1971 of his caretakership and thereafter mesne profits from first and second defendants to date of delivery up of possession.
(c) Perpetual injunction against defendants restraining them from in any way interfering with plaintiffs’ right onto and over the said estate.
(d) Return by second defendant of plaintiffs’ title deeds to the land in dispute or their value and damages for their detention.”
The writ was accompanied by an eleven-paragraphed statement of claim setting out the plaintiffs’ claim in detail against each of the defendants.
Each of the defendants entered an appearance and filed a statement of defence in answer to the plaintiffs’ claim. The first defendant filed his own defence whilst that of the second defendant was filed by the Attorney-General’s Department, Cape Coast. After pleadings were closed a summons for directions was taken on 3 December 1973 and the case was set down for hearing on 21 May 1974. On that day (21 May 1974), the case for the plaintiffs opened and cross-examination of the plaintiffs’ first witness was adjourned for continuation on 18 June 1974.
On 18 June 1974 after requests for an adjournment by counsel for the defendants had been turned down, Mr. Dawson, assistant state attorney, who appeared for the second defendant, raised an objection to the jurisdiction of the court. The main content of his argument was that by an executive instrument, the State Lands (Hemang—Lands Acquisition) Instrument, 1974 (E.I. 61) , made on 12 June 1974, the government acquired title to a large tract of land embracing the disputed land under the State Lands Act, 1962 (Act 125). Learned assistant state attorney therefore contended that by section 4 of Act 125 the proper forum for the determination of the rights of the parties was the lands tribunal. He therefore submitted that this being the case the jurisdiction of this court was ousted and that this court had become functus officio with the enactment of E.I. 61 of 12 June 1974.
For the plaintiffs it was submitted that the objection was misconceived. Learned counsel for the plaintiffs submitted that section 4 of Act 125 laid down the procedure to be followed by would-be claimants for compensation in respect of lands acquired by the government to present their claims. Counsel submitted that the present action was purely one of trespass against the first defendant and is not the type envisaged under section 4 of Act 125 and therefore the objection founded under that section was ill
[p.195] of [1974] 2 GLR 193
conceived. Counsel referred to the plaintiffs’ action against the second defendant and submitted that it was a simple action for an account and recovery of the plaintiffs’ documents which were being wrongfully detained by the second defendant. Learned counsel therefore contended that the plaintiffs’ claim against the second defendant was for an account of royalties collected by him and wondered how these claims could be said to have anything to do with the acquisition of land by the government so as to oust the jurisdiction of this court. Counsel submitted further that the lands tribunal had jurisdiction to entertain rival claims for compensation in respect of land acquired under Act 125 only when such matters were referred to it, and that the tribunal being an inferior court could not oust the jurisdiction of the High Court in respect of matters competently pending before it.
A careful and critical examination of the plaintiffs’ claim against the first defendant in this action clearly reveals that the objection against the jurisdiction of this court under section 4 of Act 125 is misconceived. The plaintiffs’ action as revealed by the pleadings is a cause which the High Court is competently seised with jurisdiction to hear: see section 14 (1) of the Courts Act, 1971 (Act 372). The action is not only for the recovery of possession of the disputed land from the first defendant, whom the plaintiffs’ claim to have put on the land as their bailiff caretaker, but also a claim for an account and recovery of the plaintiffs’ title deeds from the second defendant. It is the plaintiffs’ further claim that the first defendant’s duty as such caretaker in respect of the disputed land had been terminated since 1971, hence their action for an account against him also in respect of rents collected by him during the period of his stewardship and mesne profits up to the date of delivery up of possession.
As against the second defendants the plaintiffs’ claim is clearly put by paragraphs (9)(11) of the statement of claim which read:
“(9) The second defendant has since about 1971 ordered and directed plaintiffs not to collect royalties due from concession holders on the land and has forbidden plaintiffs from entering in and upon the land or in any way to exercise their rights in respect of the land and has itself entered in and upon the land jointly with first defendant collecting royalties and rents which it has refused and or neglected to pay over to plaintiffs despite persistent demands.
(10) The second defendant under the pretext of attempting to settle the claim of the plaintiffs against the first defendant requested plaintiffs to submit to it their title deeds relating to the land which the plaintiffs in good faith duly delivered.
(11) The plaintiffs subsequently demanded from the second defendant the return of their title deeds which second defendant has refused or neglected to do and is still wrongfully detaining the same.
Thus the plaintiffs’ action in this case is for the determination of the rights of the parties in respect of the disputed land as they were at the time of the commencement of their action and this was prior to any acquisition
[p.196] of [1974] 2 GLR 193
by the government. The action has nothing to do with the type of claim envisaged under section 4 of Act 125 which can only be made subsequent to the acquisition. How therefore section 4 of Act 125 ousts the jurisdiction of this court to entertain an action as the instant case merely because the land forming part of the subject matter has by E.I. 61 been acquired by the State is difficult to conceive.
It must be conceded that in order to succeed against the defendants on the pleadings, the plaintiffs’ title to the disputed area must be established, but that is so only in so far as it is necessary to show that as between the plaintiffs and the first defendant and up to 12 June 1974 it was the plaintiffs who had engaged the first defendant as a caretaker on the disputed land and that he had been collecting rents on their behalf. As against the second defendant the plaintiffs must show that the second defendant had also up to that date collected royalties from concession holders operating on the disputed land from which she had failed to account for the plaintiffs’ share. The very fact that the government has by E.I. 61 acquired title to the disputed land itself presupposes that title prior to the acquisition was in some person or persons other than the government. The effect of E.I. 61 as I see it is that it brought to an end the title of that owner of the land forming the subject-matter of that instrument from the day it was enacted (i.e. 12 June 1974) so that beyond that date the courts cannot decree title in favour of any persons other than the State. It is therefore a misconception for the defendants to challenge the jurisdiction of this court to determine the past rights of the parties merely because the government has acquired title to some land including the disputed land.
Executive Instrument 61 in so far as it affects the rights of any of the parties to this suit starts from 12 June 1974, and in no way affects the rights and liabilities in respect of their past activities in relation to the disputed land which can be properly determined by this court. Its effect limits the present claims by the parties in so far as it affects the land described therein to events prior to 12 June 1974.
Section 4 of Act 125 on which learned counsel for the second defendant relied for his objection is clear and unambiguous in its language. It deals with claims for compensation in respect of lands acquired by the State under Act 125. The nature of proceedings envisaged under the provisions of section 4 are subsequent to the acquisition and lays down the procedure to be followed by persons claiming compensation in respect of their rights in lands acquired under the Act. The present action by the plaintiffs in this court was commenced long before E.I. 61 was enacted and has nothing to do with the type of claim envisaged under section 4 of Act 125. The objection founded on that section as to the jurisdiction of this court therefore fails as being misconceived.
The lands tribunal is not an established forum with jurisdiction to determine any of the reliefs being sought in this action. Its jurisdiction is limited to such claims brought under Act 125 as are referred to it by the Minister for Lands and Mineral Resources now the Commissioner under subsection (2) of section 4 of Act 125 which provides that:
[p.197] of [1974] 2 GLR 193
“Where there is a dispute as to the right or interest claimed by reason of conflicting claims or interests, or any person is not satisfied with the compensation assessed by the Minister, the Minister may refer the matter to the Tribunal.”
No provision has been made under Act 125 to cater for cases already pending in the courts involving title to lands which become the subject matter of subsequent acquisition by the State which are referred to the lands tribunal under section 4(2) above. It is submitted that where a situation arises whereby title to an area involved in compulsory acquisition is already pending before the Court prior to acquisition, and pursuant to section 4 (2) rival claims are referred to the lands tribunal involving the same parties, proceedings in the lands tribunal should be stayed pending the determination of the rights of the parties in the High Court which is superior to the lands tribunal.
For the above reasons I held that the objection by counsel for the defendant was misconceived and dismissed same.
DECISION
Objection overruled.
S.E.K.
