Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA.
Date: 17TH JANUARY, 1959.
Before: OLLENNU J.
JUDGMENT OF OLLENNU J.
(His lordship stated the facts and history of the case, and proceeded;-)
Apart from the general legal right which any citizen has to assert his title to any land which he bona fide believes to be his property, there is a statutory right, given by the Public Lands Ordinance to anyone who claims to be entitled to compensation for land acquired for public purposes, to submit his claim to the Commissioner of Lands within three months of the service and publication of the notice of acquisition. This right is conferred by sections 6 and 7 of the Ordinance. It is not an actionable wrong in any person, therefore, that he should make a claim for compensation when another person who also claims to be entitled to compensation in respect of the same acquisition, also submits his claim as required by the Ordinance.
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Indeed, section 8 of the Ordinance (with which I shall deal presently) anticipates that there may be more than one claimant, and makes provision for dealing with such a situation. Therefore, the plaintiff s writ disclosed no cause of action.
As has been often held, however, by this and higher Courts, in dealing with claims from Native Courts a Court must look at the whole proceedings to ascertain the real matter in dispute between the parties, and should not confine itself strictly to the writ filed in the Native Court. Upon examination of the writ of summons and the whole of the proceedings, what emerges as the plaintiff s real claim is one for a declaration that, as between him and the defendants, he is the person entitled to the compensation for the land acquired.
Learned Counsel for the appellants submitted that the proceedings before the Native Court in this suit, and the judgment therein, are null and void, as being without jurisdiction. I agree with that submission.
The Public Lands Ordinance provides that compensation should be paid to the owner in possession of the land at the date of its acquisition. Section 8 of the Ordinance vests jurisdiction to determine the amount of compensation, and the party or parties who, among rival claimants, is or are entitled to compensation, in a special type of Court, namely, “any of Her Majesty’s Courts having jurisdiction to determine as to the ownership of such lands.” What “Her Majesty’s Courts are, is defined in the courts ordinance, and in the various Native Courts Ordinances. Native Courts are also defined in each of the said Ordinances. In my opinion, the term “Court,” when used in any Ordinance without qualification, is as defined in the Courts Ordinance, and does not include a Native Court.
Section 24 of the Courts Ordinance created a division of Her Majesty’s High Court known as the Lands Division, namely this Court, and empowered it to “exercise within Ghana jurisdiction in all causes and matters relating to the ownership, possession, or occupation of land, specifically assigned to the Lands Division by this or any other Ordinance.
The Public Lands Ordinance one such “other Ordinance,” and section 8(4) thereof provide as follows: “The evidence as to ownership of lands may be such as in proceedings before the assessor to the native chiefs would be admissible and relevant evidence as to such ownership.”
This sub-section appeared in the original Public Lands Ordinance when it was passed in 1876. At that time, Native Courts had not
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been given statutory recognition. Justice between natives was administered by the chiefs and the councillors, usually called “assessors to the chief,” and the first enactment which gave statutory recognition to the Native Court then in existence was the Native Jurisdiction Ordinance, passed in 1883, i.e. subsequently to the Public Lands Ordinance of 1876. The provisions of section 8(4) of the Public Lands Ordinance imply that “Her Majesty’s Courts” (in which jurisdiction under the Ordinance is vested) are not Courts in which the sort of evidence mentioned in that sub-section is normally admissible. The interpretation, therefore, which I place upon Section 8(4) is that the expression “any of Her Majesty’s Courts,” mentioned in Section 8(1), does not include a Court of “the assessor to the native chiefs,” i.e. a Native Court.
Further, Section 8(7) lays it down that appeals from the decision of the Court should proceed according to the rules of Court. The “rules of Court,” of course, referred to are those of the Supreme Court.
In my opinion, therefore, the only Court which has jurisdiction in virtue of Section 8(1) of the Public Lands Ordinance, is the Lands Division of the Supreme Court. The Native Court, accordingly, had no jurisdiction to determine the real matter in dispute as disclosed on the writ and the proceedings, namely: Who, as between the plaintiff and 1st defendant, is the person entitled to compensation for the land acquired?
Section 8(2) of the Public Lands Ordinance provides as follows:
“Notice in writing signed by the Commissioner of Lands or an Assistant Commissioner of Lands shall be served upon every person who may have claimed any interest in respect of such lands not less than seven days before the time appointed for hearing and determining such claims, calling upon such persons to come in and prove their claims to the lands or the interest therein to which they may consider themselves entitled ….”etc.
Upon the issue of the Certificate of Title, the land becomes vested in and held by the Government in the manner provided in Section 2 of the Ordinance, and the only thing left to the owner in possession at the date of the acquisition is the right to compensation. Section 8(2) provides that proceedings for the determination by the Court of rival claims and of the amount of compensation for land acquired under the Ordinance shall be instituted by, and only by, the Commissioner of Lands. That being so, the institution of the present action by the plaintiff, instead of by the Commissioner of Lands, was ultra vires the plaintiff, and there was no jurisdiction in the Native Court to entertain the suit.
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DECISION
I must therefore allow the appeal. It is allowed accordingly, and the proceedings before the Native Court, their judgment therein, and their orders as to costs, are declared null and void, and of no effect. Any costs already paid are to be refunded. The appellants will have their costs in this Court, fixed at £16 18s. Od., including Counsel’s costs of 10 guineas; and their costs in the Native Court, to be taxed.
