RE CLAIMS BY LA MANTSE AND OTHERS RE-ACQUISITION OF LAND FOR PRESBYTERIAN SECONDARY SCHOOL [1965] GLR 50

DIVISION: HIGH COURT, ACCRA

DATE: 13 FEBRUARY 1965

BEFORE: ACOLATSE J.S.C.

CASES REFERRED TO:

(1) Colonial Sugar Refinery Co., Ltd. v. Irving [1905] A.C. 369; 74 L.J.P.C. 77; 92 L.T. 738; 21

T.L.R. 513, P.C.

(2) Commissioner of Police v. Akyeampong [1963] 1 G.L.R. 402, S.C.

NATURE OF PROCEEDINGS

INQUIRY under the Public Lands (Leasehold) Ordinance in respect of a piece of land required for public purposes by the government before Acolatse J.S.C. sitting as an additional judge of the High Court.

COUNSEL

Cowlishaw for the Chief Lands Officer (Legal) for the State.

JUDGMENT OF ACOLATSE J.S.C.

This inquiry came before this court, under the Public Lands (Leasehold) Ordinance,1 in respect of a piece of land to the north-east of the junction of the Accra-Abokobi and the Accra-Dodowa roads at mile 9 from

Accra. It encloses an area of 244.446 acres and is more particularly delineated and shown edged pink on a cadastral plan numbered 2.2442 attached to the certificate of title, exhibit O. The land was vested in the government on 16 September 1955 in respect of which a certificate of title was granted by the court on 14

December 1955. The land was required for public purposes for a Presbyterian Secondary School at a site adjoining the Accra-Dodowa road on the eastern side of the road. Notice of the intended acquisition was published in Gazette No. 2959, dated 7 October

[p.52] of [1965] GLR 50

1955 under section 5 of the Ordinance, calling upon any person claiming to be entitled to the said land or any estate or interest therein to send in a signed statement in writing, stating the particulars of the estate or interest claimed, the evidence of title and the amount of compensation claimed therefore. The Gazette notice is put in and marked exhibit M by the Chief Lands Officer.

As a result of the publication of the said notice in the Gazette and the service and posting, the La Mantse and the Teshie Mantse entered into correspondence with the Commissioner of Lands, on 18 October 1955 and 26 November 1955 respectively, each indicating his claim to the acquired land as shown in exhibit P, claiming to be seised, possessed of or entitled to the land.

The evidence of the Deputy Chief Lands Officer, Mr. Cowlishaw, shows that the Nungua stool executed a deed of covenant on 21 December 1951 permitting the government to acquire the land in dispute subject to compensation being agreed to later. Apart from this evidence the Nungua stool did not make any formal written claim when the acquisition notice was published and posted on the land.

The marginal note to section 7 (1) of the Public Lands (Leasehold) Ordinance, provides that the “Time within which claim to be made, and conditions with which it must comply.” The Gazette notice made it clear that any person claiming to be entitled to the said land was required to lodge his claim at an office of the Lands Department on or before 31 March 1956.

The conditions specified under section 7 (2) and (3) of the said Ordinance referred to above are as follows:

“Every such statement of claim shall –

(a) be in writing signed by or on behalf of the claimant;

(b) state the nature and particulars of the estate or interest of the claimant (by reference to a plan of the land where necessary) and of the evidence of the title thereto;

(c) state the amount of compensation claimed, distinguishing the heads mentioned in subsection

(1) of section 15 under which compensation is claimed, and showing how the amount claimed under each head is calculated; and

(d) be received at an office of the Lands Department before the date specified for this purpose in the Gazette notice.

(3) No claim within the meaning of this Ordinance shall be deemed to have been made unless the statement thereof complies with all the provisions of the last foregoing subsection.”

[p.53] of [1965] GLR 50

The Chief Lands Officer in his evidence stated that “The deed of covenant was the only document we have on behalf of the Nungua stool. A deed of covenant was also executed by the La stool to the government on 4 November 1951.”

It appears from the context of the provisions of section 7 of the Public Lands (Leasehold) Ordinance, that the Nungua stool is caught under the Ordinance; for the stool or its representative on its behalf could not be deemed to have made any claim of its title to the acquired land in dispute in this inquiry to claim any compensation payable in respect thereof, and, this inquiry is for the purpose of deciding which of the claimants is seised, possessed of or entitled to the land in question for the purpose of compensation payable in respect of the acquisition. This aspect of the matter against the Nungua stool, technically, seems to me to be fatal. But since the Commissioner of Lands referred the Nungua stool to the court as one of the claimants I have to consider their claim on its merit.

However there is some confusion in the matter in respect of the position of the Nungua stool in this inquiry. The question of the conflicting claims of title to the land was referred to the court on 18

September 1956, under section 13 (1) and (2) of the Ordinance, to settle and determine the question as to the ownership of the land in accordance with the provisions of the Courts Ordinance.2 The claimants referred to the court by the Commissioner of Lands were: (1) the La Mantse; (2) the Teshie Mantse; and

(3) the Nungua Mantse.

Eventually this matter came before the court for hearing on 15 October 1956 after the parties were duly notified to attend by hearing notice. The first and second claimants appeared but there was no appearance for the Nungua Mantse. Pleadings were ordered on that day by Lingley J. treating the Teshie Mantse as the plaintiff and the La Mantse as the defendant.

Issues were joined and agreed upon, as set out hereunder, by the three claimants before van Lare J., (as he then was) on 16 January 1957. The issues to be tried are inter alia as follows:

(a) Whether the stools of Labadi and Nungua have any interest in the land the subject-matter of this acquisition or whether it is the bona fide property of the Teshie stool in whom ownership is vested.

(b) Any other issues joined on the pleadings.

On 26 March 1957 the proceedings in this acquisition case were stayed until the boundaries between the respective claimants had

[p.54] of [1965] GLR 50 been determined by the lands boundary settlement commissioner. The order of the court was,

“Proceedings stayed until boundary shall have been determined under Cap. 139.” The trial stood adjourned on different dates by the court until 25 September 1959 when it was on that day “By consent adjourned sine die” by Sarkodee-Adoo J. (as he then was). Eventually the matter came before the court for hearing on 23 July 1964 and I proceeded to hear the matter as referred to the court as the question of the title or ownership of the land covered by this acquisition between the claimants was still one to be determined by the court.

The Nungua stool had every opportunity to file their pleadings which they failed to do. There were no pleadings filed by the stool at any time in this case until 28 September 1964, when Bossman, counsel for the Nungua stool filed a statement of claim by leave of court subject to payment of costs.

Mr. Cowlishaw, Chief Lands Officer, (Legal) was subpoenaed to give evidence and produce all available documents in this case on behalf of his department and the government. At the close of the case after an exhaustive hearing he raised the point on jurisdiction in this acquisition matter. I desire now to deal with it before proceeding to consider the case for each claimant.

Mr. Cowlishaw of the Lands Department, expressed the opinion that this court has no jurisdiction to continue and determine this case, the proceedings in which were commenced in 1955 under the provisions of the Public Lands (Leasehold) Ordinance, now repealed. He argued that the Public Lands (Leasehold)

Ordinance having been repealed by the State Property and Contracts Act, 1960, 3 all cases of land acquired after 1 July 1960 were governed by the provisions of the said Act. Section 9 (a) of that Act provides for settlement of claims in a dispute as to the ownership of the property by a judge of the High

Court. The only authority upon which the High Court continued to entertain the proceedings is section 9

(c) of the Interpretation Act, 1960,4 which provides:

“[A]ll proceedings taken under the repealed or revoked enactment shall be prosecuted and continued under and in conformity with the substituted enactment, so far as consistently may be.”

He continued, however, that sections 4 to 18 of the State Property and Contracts Act, 1960, so far as they relate to land were repealed

[p.55] of [1965] GLR 50 by the State Lands Act, 1962 5 and a new procedure for the acquisition of land was substituted. Among the substituted provisions is the one in section 3 of the Act for the appointment of a tribunal which shall have jurisdiction to determine disputed claims to compensation with respect to land acquired under the said Act, that is to say, with respect to acquisitions made from and after 14 June 1962, the date on which the said Act came into force.

Mr. Cowlishaw submitted therefore that since the State Property and Contracts Act, 1960, has been repealed and the State Lands Act, 1962, has been substituted therefor, these proceedings which were pending in the High Court at the date when Act 125 came into force, can only be continued in accordance with the provisions of section 9 (c) of the Interpretation Act, 1960, and must be continued by a tribunal under section 3 of Act 125.

The arguments advanced by Mr. Cowlishaw is a wrong interpretation of section 9 (c) of the Interpretation

Act, 1960, and that wrong interpretation resulted from confusing an enactment which confers jurisdiction or a right with an enactment which lays down a procedure for exercising jurisdiction or a right.

Jurisdiction or a right which has become vested cannot be ousted by the repeal or revocation of an enactment creating the jurisdiction or conferring the right and the substitution of another enactment therefore, unless the repealing enactment contains express words to the contrary or there is the plainest implication to that effect, or unless the repealing enactment abolished the court in which the jurisdiction was vested immediately prior to the repeal.

Thus in Colonial Sugar Refinery Co., Ltd. v. Irving 6 an Act of the Australian Parliament was passed in

1903, prohibiting appeals from the Supreme Court of Queensland to the Privy Council, and provided for appeals only to the High Court of Australia. At the time of passing the said Act, a suit was pending before the Supreme Court and the same was decided thereafter. Upon appeal from the decision to the Privy

Council objection was raised to the jurisdiction of the Privy Council on the grounds that by reason of the enactment of 1903, the only court vested with jurisdiction to entertain an appeal from that decision is the

High Court of Australia. It was held that:

“Although the right of Appeal from the Supreme Court of Queensland to His Majesty in Council, given by the Order in Council of June 30, 1860, has been taken away by the Australian Commonwealth Judiciary Act,

1903, Section 39 (2) and the only

[p.56] of [1965] GLR 50 appeal therefore now lies to the High Court of Australia, yet, the Act is not retrospective and a right of appeal to the King in Council in a suit pending when the Act was passed and decided by the Supreme Court afterwards was not taken away.”

But in the case of an enactment which lays down procedure to be followed in the exercise of jurisdiction the repealing enactment has retrospective operative effect, and the continued prosecution of a pending matter has to be conducted in accordance with the new procedure substituted by the repealing enactment, unless the repealing enactment contains express words to the contrary.

This principle of the law is clearly explained by the Supreme Court in its judgment in commissioner of

Police v. Akyeampong7; it is also fully discussed in Maxwell on Interpretation of Statutes (11th ed.) , pp.

204, 306 and 212, also in Vol. 36 of Halsbury’s Laws of England (3rd ed.), p. 647 and that is the principle which I have to apply in the present proceedings.

The land in dispute was acquired on 14 December 1955 under the Public Lands (Leasehold) Ordinance.

At that date the court which had jurisdiction in the matter was the Land Court, a division of the High

Court created by the Courts Ordinance, now repealed. The procedure for vesting that court with jurisdiction in any particular matter was either by a writ of summons issued in accordance with rules made under the said Courts Ordinance, or by any other method provided by any other enactment.

As far as acquisition proceedings are concerned the procedure for vesting the Land Court with jurisdiction was by reference to that court made by the Commissioner of Lands, of a dispute arising out of the acquisition of land required for public purposes in accordance with section 13 (1) and (2) of the said

Ordinance. The vesting of jurisdiction in a court with respect to any particular proceedings also operates to vest in the parties a right to prosecute those particular proceedings in the said court.

The Commissioner of Lands on 18 September 1956 referred the disputed claim in the present acquisition proceeding to the Land Court; that reference vested the Land Court with jurisdiction in the present proceedings and that it at the same time vested in the claimants a right to have their dispute heard and determined in the Land Court. The said vested jurisdiction of the court to entertain the proceedings and the said vested rights of the parties of having the proceedings heard and concluded in the Land Court cannot be taken away except by abolition of the said Land Court or by express words in a subsequent enactment.

[p.57] of [1965] GLR 50

The Courts Ordinance was repealed by the Courts Act, 1960, which came into force on 1 July 1960 and substituted this court, the High Court, for the Land Court under the Courts Ordinance. Thereupon the jurisdiction which was vested in the Lands Division of the High Court immediately prior to 1 July 1960 automatically vested in this court by virtue of section 9 (c) of the Interpretation Act, 1960, quoted above.

It follows, therefore, that on 1 July 1960 the parties to these proceedings acquired a vested right to prosecute their respective claims in this court, and in no other court. That right according to the laws as explained above cannot be taken away by any subsequent enactment unless the said subsequent enactment either (1) abolished the High Court altogether or (2) by express words or by necessary implication revoked the rights vested in the parties.

What then is the effect of the State Lands Act, 1962, which came in force on 14 June 1962. Is it an enactment affecting vested rights and vested jurisdiction, or is it a statute laying down procedure? Now the State Lands Act, 1962, provides that section 4 to 18 of the State Property and Contracts Act, 1960, shall cease to have effect in so far as they relate to land. It laid down a new procedure to be followed by the State in effecting compulsory acquisition of land, and it also made provisions for the establishment of a special tribunal which should exercise jurisdiction in disputes which may arise in connection with acquisitions made from and after 14 June 1962. That Act therefore did not abolish the High Court as a court of justice and it did not expressly or by necessary implication revoke the right vested in the parties to prosecute their claims in this court.

The Act is therefore exactly like the Australian Commonwealth Judiciary Act, 1903, which substituted the

Australian High Court for the Privy Council as a court of appeal from decisions of the Supreme Court of

Queensland, but did not abolish the Privy Council and consequently could not take away the jurisdiction already vested in the Privy Council to continue and conclude the appeal or the right vested in the parties to have their appeal heard in the said Privy Council. Therefore the coming into force of the said State

Lands Act, 1962, did not and cannot in law affect the jurisdiction vested in the court and the right vested in the parties to prosecute their claims in this court, since the said jurisdiction and the said right were both subsisting prior to the date when the State Lands Act, 1962, came into force.

The proper interpretation, therefore, to be placed upon section 9 (c) of the Interpretation Act, 1960, taken in conjunction with the State Lands Act, 1962, is that the procedure to be followed in making compulsory acquisition of land shall be as laid down in the State [p.58] of [1965] GLR 50

Lands Act, 1962, that from and after 14 June 1962 a special tribunal shall have jurisdiction to try all disputes arising out of acquisition made from and after that date; that the process of vesting jurisdiction in the said tribunal shall be by reference to it by the minister; that if any proceeding for compulsory acquisition has been initiated, but had not on the said 14 June 1962 reached a stage for instituting proceedings in court, the process for initiation of any court process which may become necessary, should be the procedure laid down in the said State Lands Act, namely, by reference made to the tribunal by the minister.

But the procedure to be followed in a court which has already been vested with jurisdiction shall be the one which applies in the High Court which was substituted for the Land Court. Therefore jurisdiction which had already become vested in the court prior to 14 June 1962 is in no way affected by the State

Lands, Act, 1962, and the court must exercise it.

The view I have expressed above that the jurisdiction is inherited by this court to continue and conclude this case which was pending in the Land Court is fully supported by the provision of section 88 (2) of the

Courts Act, 1960,8 which makes it obligatory upon this court to continue and conclude the case. The section reads, “Every case pending before the High Court of Justice or any division thereof immediately before the commencement of this Act shall be continued and concluded in the High Court referred to in this Act.”

For these reasons I reject the submission made by the Chief Lands Officer (Legal)

[His lordship then considered the merits of the case put forward by each claimant and continued:] For the reasons I have given above on the merits of each claimant herein I hold the La Mantse has established his claim in title to the land in dispute as the owner thereof as against the stools of Teshie and Nungua.

Judgement accordingly for the La Mantse with costs. Costs against Teshie stool assessed at one thousand guineas inclusive. Cost against Nungua stool assessed at one thousand guineas inclusive.

DECISION

Judgment for the claimant

E.A.- A.