HIGH COURT, CAPE COAST
Date: 18 APRIL 1975
WIREDU J
CASES REFERRED TO
(1) Ellis and Wood Families v. Nana Baffour II [1974] 2 G.L.R. 193.
(2) Mensah-Moncar v. Chainartey [1972] 2 G.L.R. 293.
(3) In re Public Lands (Leasehold) Ordinance: Osu Mantse (Claimant) [1959] G.L.R. 163.
(4) Spokesman (Publications) Ltd. v. Attorney-General [1974] 1 G.L.R 88, C.A.
(5) Tsiboe v. Kumasi Municipal Council [1959] G.L.R. 253.
(6) State v. Otchere [1963] 2 G.L.R. 463.
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NATURE OF PROCEEDINGS
PRELIMINARY OBJECTION to the jurisdiction of the High Court to continue further 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. 133 of 1974 made under Act 125. The facts are sufficiently stated in the ruling.
COUNSEL
U. V. Campbell for the plaintiffs.
James Mercer for the first defendant.
JUDGMENT OF WIREDU J
This case has a rather chequered and unenviable history and in order to appreciate the points raised for consideration in this ruling it will be necessary to recite same briefly.
On 5 October 1973 the plaintiffs herein issued out of this court a writ against the first defendant for title and recovery of possession of a parcel of land commonly described as “The Hemang Estate.” There was also a claim for accounts against the first and second defendants from 1970 to date of judgment. During the pendency of the action the government by an executive instrument No. 61 of 1974 dated 12 June 1974, acquired a large tract of land under the title “State Lands (Hemang-Lands Acquisition) Instrument, 1974,” embracing the disputed land.
On 18 June 1974 learned counsel for the second defendants raised an objection to the jurisdiction of this court contending that with the publication of E.I. 61 of 1974 the proper forum to determine the rights of the parties was the Lands Tribunal under the State Lands Act, 1961 (Act 125). I rejected this argument and in my ruling of 22 July 1974 (reported in [1974] 2 G.L.R. 193) I held that this court was seised with jurisdiction. I therefore heard the case on its merits and in my judgment in favour of the plaintiffs, I made an order for accounts against the defendants who were ordered to file accounts in respect of their dealings with the disputed land from 1970 up to 12 June 1974 when the disputed land became vested in the State. The accounts were to be filed on or before 15 August 1974.
On 14 August 1974 the first defendant filed his accounts which were surcharged by the plaintiffs in a notice filed on 10 October 1974. When the order for accounts was mentioned on 18 October 1974 the first defendant had then not been served with the plaintiffs’ notice of surcharge so the matter was adjourned to enable him to be served.
Whilst the accounts aspect of the case was still pending the government on 20 December 1974 published yet another Instrument, the State Lands (Hemang-Lands Acquisition) Instrument, 1974 (E.I. 133), revoking E.I. 61 and by paragraph 1 declared the Hemang lands as State property with effect from 21 February 1973. Armed with this Instrument, Mr. Mercer for the first defendant on 27 February 1975 (when the case came on for consideration) raised an objection in limine against any further proceedings in this court with respect to the Hemang lands. The basis of his argument was that E.I. 133 swept away whatever rights the plaintiffs had in Hemang lands including the ruling of this court dated 22 July 1974 under which
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the plaintiffs were seeking to enforce their right to accounts from the first defendant. He contended that with the acquisition by the State of the disputed land on 21 February 1973, the State acquired title to the same free from all encumbrance and therefore this court had no jurisdiction to entertain further any matter relating to the Hemang lands. He referred to section 1(3) of the State Lands Act, 1962 (Act 125), and argued that by E.I. 133 the judgment of this court dated 22 July 1974 became nullified and that the only legal entity with an interest in the Hemang lands was the State. For authority learned counsel cited the cases of Mensah-Moncar v. Chainartey [1972] 2 G.L. R. 293 and In re Public Lands (Leasehold) Ordinance: Osu Mantse (Claimant) [1959] G.L.R. 163. He argued further that since proof of title to the Hemang lands was a sine qua non to the order for accounts being sought by the plaintiffs against the first defendant, this court was incompetent to determine that issue because according to him the plaintiffs had become divested of all rights they had in the land. Learned counsel referred to Spokesman (Publications) Ltd. v. Attorney- General [1974] 1 G.L.R. 88, C.A. and invited the plaintiffs to go to the proper forum, i.e. the Lands Tribunal if they had a claim against the first defendant.
Mr. Campbell for the plaintiffs resisted the objection on three main legs. He argued firstly that the competency of this court to adjudicate on this matter had been confirmed by the ruling of this court dated 22 July 1974 against which no appeal has been lodged. His second ground was that E.I. 133 did not vacate the decision of this court in favour of the plaintiffs which ordered the accounts against the first defendant. He argued that there was no express mention of this in E.I. 133, which also could not be construed to have vacated the decision impliedly. He contended that a judgment of a court of competent jurisdiction could only be vacated by a substantive Act or Decree stating so in clear terms and not by a delegated instrument. He therefore submitted that if it was the intention of the legislature to divest the plaintiffs of their rights under the judgment then that could only be effectively done by a Decree nullifying the effect of that decision in specific terms. He argued that nowhere in E.I. 133 was any reference made to the judgment. He therefore contended that notwithstanding the retrospective nature of E.I. 133 that judgment stood with its full force.
The last point taken against the objection was an attack on the validity of paragraph 1 of E.I. 133 which reads: “The lands specified in the schedule to this Instrument are with effect from the 21st day of February, 1973 declared to be lands required in the public interest.”
Learned counsel for the plaintiffs submitted that paragraph 1 of E.I. 133 was ultra vires the spirit and tenor of Act 125 under which it was passed. He referred to section 1(3) of Act 125 and submitted that on its true construction the disputed land became vested in the State free from any encumbrance on 20 December 1974 when E.I. 133 was published. According to counsel Act 125 envisages present and future but not past acquisition.
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He therefore argued that under E.I. 133 the effective date on which the State could lay claims to the Hemang lands was 20 December 1974 and that being so the first defendant was properly held to be accountable to the plaintiffs. He, therefore, submitted that the objection raised to the jurisdiction of this court was untenable and should be dismissed.
I have no hesitation in rejecting as untenable any arguments which seek to suggest that this court is incompetent to adjudicate on title relating to any land which is the subject of acquisition by the State. The jurisdiction of this court to determine land causes as contained in section 14 (1) (a) of the Courts Act, 1971 (Act 372), does not become ousted because the land, the subject-matter pending, has become State property. What the acquiring instrument does is to render it incompetent for the court to decree title in favour of any other person other than the State from the date of publication of the instrument. The preference in favour of the Lands Tribunal as canvassed on behalf of the first defendant as the proper forum to determine the rights of the parties is untenable because the Lands Tribunal is not an established court with jurisdiction to determine actions for account and land causes such as the present claim by the plaintiffs. Its jurisdiction is subsequent to acquisition and limited to rival claims for compensation in respect of lands acquired which are referred to it by the Commissioner responsible for Lands and Mineral Resources: see section 4 (2) of Act 125. Of course in determining the rival claims it must determine title first and will admit into evidence decisions of other courts of competent jurisdiction touching the issue of title, but that does not by itself confer original jurisdiction in land causes on it. As I stated in my ruling of 22 July 1974 as between the parties to this dispute this court has jurisdiction to determine title prior to the date of acquisition in order to determine the question of accountability. A cause of action does not depend solely on the date of the issuing out of a writ of summons for its validity but also on the day that particular cause of action became accrued which must be prior to the day the writ is issued. So that it is competent for a plaintiff to issue a writ today to enforce a past claim which is not statute-barred. The effect of an instrument passed under Act 125 is to render it incompetent for any party to litigate about title to the land the subject-matter of that instrument in the courts from the date of the acquisition but this is without prejudice to past rights of any individual with an interest in the land acquired under the Act.
Even though learned counsel for the first defendant did not say so in specific terms, I think the pith of his argument was that since by E.I. 133 Hemang lands were deemed to have become vested in the State free from all encumbrances on 21 February 1973, it was incompetent for the plaintiffs to have commenced their action in October 1973 in respect of that land and claim accounts against the first defendant. If I am right in this view I have taken of learned counsel’s submissions then the short answer to it is that the plaintiffs’ right to maintain their action in respect of the disputed land for accounts as I have stated above did not arise on the date
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of the issue of their writ but on the date their cause of action accrued. In the instant case the writ undisputedly was issued in October 1973 (almost about seven months after E.I. 133 is deemed to have come into effect). The claim for accounts relates back to events from 1970. Up to 20 February 1973 when E.I. 133 had not vested the disputed land in the State, the plaintiffs were entitled to maintain their action for title and accounts against the first defendant. E.I. 133 as I see it on its face merely limited the rights, interests and obligations of the parties to events prior to 21 February 1973. It has not therefore taken the plaintiffs’ right to accounts from the first defendant as decreed by this court. Unlike the Spokesman case (supra) where the court before which the action was pending ceased to exist, the court which decreed account in favour of the plaintiffs exists to enforce that order. My conclusion above rejects the arguments by learned counsel for the first defendant that E.I. 133 nullified the decision of this court dated 22 July 1974, the objection to the jurisdiction of this court founded on section 1 (3) of Act 125 and submission founded on the authority of the Spokesman case (supra).
There is also the submission by learned counsel for the plaintiffs that E.I. 133 could not be construed to have taken away the plaintiffs rights under that judgment. With that submission I am in entire agreement. There is a general presumption against a construction which seeks to take away acquired and vested rights: see section 8 (f) of the Interpretation Act, 1960 (C.A. 4). Under E.I. 133 the effective date the Hemang lands became vested in the State free from all encumbrances is on 21 February 1973 (vide paragraph 1). Prior to the publication of this instrument which was the first notice of the acquisition to the whole world, the plaintiffs had acquired rights under an earlier instrument, i.e. E.I. 61. By a judgment of this court dated 22 July 1974 (i.e. nine days after E.I. 61 had come into force) the plaintiffs’ rights were limited to events prior to 12 July 1974. The question now is, E.I. 61 having been revoked by E.I. 133 should the latter be construed as to have taken away the vested and acquired rights of the plaintiffs under the judgment of 22 July 1974 by virtue of which they are seeking to enforce their entitlement to accounts from the first defendant? This judgment is a decision of a court of competent jurisdiction which is still subsisting and which would require either a higher court’s order, a Decree, a substantive Act or a special executive instrument enacted specifically to vacate its force: see Tsiboe v. Kumasi Municipal Council [1959] G.L.R. 253 and section 2 of the Kumasi Municipal Council (Validation of Powers) Act, 1959 (No. 86 of 1959); (this received the Royal Assent in Ghana Parliament in December 1959); the State v. Otchere [1963] 2 G.L.R. 463 and the Special Criminal Division Instrument, 1963 (E.I. 161).
I do not think it was the intention of the State to deprive the plaintiffs of their rights under the judgment of this court dated 22 July 1974 when it enacted E.I. 133. If the contrary was the case then there might be a special reason why the government must have acted in favour of the
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first defendant. This special reason is not apparent on the face of the instrument. Further I am not aware of any instance when a judgment of a court of competent jurisdiction has been nullified by delegated legislation of the kind of E.I. 133 nor am I able to construe nullification by implied terms as is being suggested here. If the intention of the government was to deprive the plaintiffs of their rights under the judgment it could easily have done so by decreeing to that effect rather than to seek refuge impliedly under an instrument passed under powers conferred by Act 125 which specifically deals with land acquisitions by the State.
I am therefore of the view that the stand taken by Mr. Mercer that E.I. 133 swept away the decision of this court in favour of the plaintiffs as the true construction of the retrospective effect of E.I. 133 is ill-founded and it is hereby rejected. I also reject the argument by Mr. Campbell that it is incompetent to nullify a court’s decision by an executive instrument as a sweeping generalization: see E.I. 161 of 1963.
I will now deal with the controversial issue as to whether paragraph 1 of E.I. 133 offends against the spirit of Act 125 and therefore should be struck down as ultra vires. E.I. 133 of 1974 is an instrument made under powers conferred on the President (now the National Redemption Council) by Act 125. Its provisions must therefore not violate the spirit of Act 125 otherwise it will be struck down as being ultra vires. E.I. 133 cannot do what is not envisaged by Act 125 and any particular provision of it which is inconsistent with the provisions of Act 125 will be declared devoid of any legality. The question now is what is the spirit of Act 125? Does it envisage only present and future acquisition as suggested by learned counsel for the plaintiffs? We shall now examine the Act (the relevant sections thereof) to ascertain its spirit.
Section 1 (1) of Act 125 of 1962 reads as follows:
“Whenever it appears to the President in the public interest so to do, he may, by executive instrument, declare any land specified in the instrument, other than land subject to the Administration of Lands Act, 1962 (Act 123), to be land required in the public interest; and accordingly on the making of the instrument it shall be lawful for any person, acting in that behalf and subject to a month’s notice in writing to enter the land so declared for any purpose incidental to the declaration so made.”
See also N.L.C.D. 234. Section 1 (3) of Act 125 makes it clear that any land acquired under the Act vests in the Chairman of the National Redemption Council on behalf of the Republic free from any encumbrance on the publication of the instrument. Section 4 of Act 125 also enjoins any person with a right or any interest in any land subject to acquisition to submit to the commissioner particulars of his claim, etc. “within three months from the date of the publication of the instrument.” (The emphasis is mine.) Section 4 contemplates awards of compensation to persons whose lands are compulsorily acquired under Act 125. Any instrument passed thereunder
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which seeks to deprive an owner of land acquired under Act 125 of his compensation will be violating section 4 of Act 125 and will therefore be struck down as being ultra vires the spirit of Act 125.
There is a general presumption against construing statutes restrospectively in the absence of express provision in favour of that construction but it is apparent from the above review of the relevant sections of Act 125 discussed that the spirit of Act 125 is not against past acquisitions as such. It envisages past, present as well as future acquisitions save that acquisitions which have the effect of depriving owners of land so acquired of their entitlement to compensation would be violating section 4 and therefore would be declared ultra vires.
The construction which Mr. Mercer puts on the retrospective effect of E.I. 133 as contained in paragraph 1 does not have the effect of depriving the owners of the Hemang lands of their right to compensation since on its face they have three months from 20 December 1974 to submit their claims. To construe E.I. 133 retrospectively in terms as spelt out in paragraph 1 is not ultra vires section 4 of Act 125. It is therefore hereby declared valid. Nor does this construction violate the provisions of section 1 (3) of Act 125 upon which the arguments of Mr. Campbell were founded. Even though section 1 (3) of Act 125 states that the land shall vest in the State on the publication of the instrument that is far from saying that the effective date is from the date of publication. E.I. 133 having revoked E.I. 61 the effective date the Hemang lands became vested in the State is on 21 February 1973 and not on 20 December 1974, when the instrument was published as was contended by Mr. Campbell but the judgment in favour of the plaintiffs for accounts still subsists in its full force.
The objection taken on behalf of the first defendant against the jurisdiction of this court is, however, hereby held to be untenable and the same is hereby dismissed.
DECISION
Objection overruled.
S. O
