REPUBLIC vs. LAND TITLE REGISTRAR AND ANOTHER; EX PARTE BOAHEN II [2001-2002] 1 GLR 42

CASE REFERRED TO:

(1) Republic v High Court, Accra; Ex parte Appiah [2000] SC GLR 889.

APPLICATION by the owner of the reversionary interest in a registered land for an order of certiorari to quash the decision of the Land Title Registrar which resulted in the cancellation and withdrawal of a land certificate previously issued to the applicants’ grantee by the registrar. The facts are sufficiently stated in the ruling of the court.

L S N Akuetteh for the applicant.

Dick Anyadi for the respondent.

Ofoe J. It is not in doubt that the Land Title Registry issued to Games International (GI) a land title certificate No GA 13013 and issued in respect of the same land, a land title certificate No GA 13872 to New England Estates Ltd. To clear the anomaly, the Land Title Registrar subsequently instituted investigation into the matter and came out with a decision concluding as follows:

“From the foregoing, the only conclusion that the Land Title Registry can come to is that the land in dispute is the property of Lenshie quarter. It does not belong to La, neither does it belong to any other quarter of Teshie. Incidentally GI (Games International) had alluded to the fact that one quarter of Teshie, the Nuumo Nmeshie family had endorsed their support of the grant of the property of GI. The documents analysed above show conclusively that the land belongs to the Lenshie quarter and not to La and no amount of endorsement by anybody can change that. You are hereby informed that the Chief Registrar of Lands intends to withdraw your certificate No GA 13013 for want of title in your grantor within two weeks from April 2000. You are required to submit the said certificate within the said two weeks.”

It is this decision that the applicant, Nii Adjei Boahen II, Nmati Abonase Mantse, La is asking this court to quash by certiorari and further to prohibit the Land Registrar from further attempt at

[p.45] of [2001-2002] 1 GLR 42 enforcing his decision.

There is no dispute that the Land Title Registrar arrived at the said decision after examining certain documents and judgment submitted by both Games International and New England Estates Ltd (NEE) and in fact cancelled the certificate of Games International. But why is the applicant disturbed by the decision of the Land Title Registrar? He states it as follows in paragraph (11) of his supporting affidavit:

“(11) That I am advised and verily believe same to be true that the decision of the Land Title Registrar cannot be supported in law for the following reasons:

(i) the Land Title Registrar has no legal authority to do what it purported to do in exhibit B;

(ii) the Land Title Registrar violated our fundamental human rights by purporting to take from us our ancestral lands without giving us a hearing; and

(iii) even on the face of exhibit B, the legal reasoning for the decision therein is blatantly and fundamentally so faulty, that it should not be made to stand.”

Exhibit B is the letter, part of which I have quoted earlier which communicated the decision of the Land Title Registrar. The reliefs the applicant is seeking are:

“(i) That the decision of the Land Title Registrar dated 5 April 2000 affecting the applicant be brought up and quashed.

(ii) That the Land Title Registrar be prohibited from cancelling land title certificate No GA 13013 Vol 02 Folio 134 and from interfering with the rights of the applicant and his grantees therein contained.”

Reading the affidavit in opposition of both respondents, that is the Land Title Registrar and the New England Estates Ltd, what they sought to do was to justify the action of the Chief Registrar of Lands. First, by submitting to the court copious exhibits to show that the decision of the Chief Registrar of Lands that the applicants are not owners of the land in dispute was right. Secondly, that the

[p.46] of [2001-2002] 1 GLR 42

Chief Registrar in coming to the conclusion to withdraw the certificate of the applicant’s grantee, Games International, was acting under his rectification powers under the Land Title Registration Law, 1986 (PNDCL 152). Finally, that there has been a consent judgment of the court in which Games International, the cancellation of whose land certificate is the subject matter of the application, was privy to another suit before the court, suit No L153/2000, in which consent judgment was given granting the second respondent, that is New England Estates Ltd, title in the said land in dispute and sustaining the validity and efficacy of land title certificate No GA 13872 issued to them.

Submissions before the court centred on the power of the Chief Land Registrar to withdraw a land certificate duly issued by it and whether the applicant had any interest at all to file the application asking for certiorari and prohibition.

Before I look at these issues let us refresh our knowledge of the prevailing condition under which the order of certiorari may be granted. For this I will quote Ampiah JSC in the case of Republic v High Court, Accra; Ex parte Appiah [2000] SCGLR 389 at 391-392:

“An order of certiorari would be made where the order sought to be quashed has been made, inter alia, without jurisdiction either because the court has exceeded its jurisdiction or lacks jurisdiction. However, a court having jurisdiction may lose that jurisdiction if its decision is made in bad faith; or it has failed in the course of the inquiry to comply with the requirements of natural justice; or it has refused to take into account something which it was required to take into account; or it might have based its decision on a matter it has no right to take into account: see Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171, HL. The list cannot be said to be exhaustive. However, where the court had jurisdiction to entertain the action, its judgment or ruling cannot be impeached on the mere ground that its decision is wrong. Under those circumstances, the proper thing to do is to appeal against the decision. Where, however, upon the face of the proceedings themselves, it appears that the decision of the

[p.47] of [2001-2002] 1 GLR 42 court is wrong in law, certiorari to quash would be granted: see R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338.”

(The emphasis is mine.) Clearly, therefore, where there is failure to comply with the requirement of natural justice or where upon the face of the proceedings it appears that the decision of the court is wrong in law, certiorari to quash would be granted.

Now, has the Chief Land Registrar the power to cancel land certificate issued by it? And if he has, was he in the circumstances of the case competent to withdraw the certificate issued to the Games International, the grantees of the applicant? Reading sections 22(3) and 23(6) of PNDCL 152, it appears to me not in doubt that the Land Title Registrar has power to investigate applications made to it under the Law. Section 22(3) of PNDCL 152 provides: “(3) There shall be referred to the Adjudication Committee either by the Land Registrar or any interested person any dispute relating to the registration of land or interest in land.” And section 23(6) of PNDCL 152 provides:

“(6) Where there are two or more claimants of any interest in land situated in a registration district and the Land Registrar is unable to effect agreement among the claimants. . .”

He is bound to refer the matter to the Adjudication Committee for adjudication.

By these provisions the Land Registrar has a duty to conduct initial investigation to satisfy himself that a dispute exists between applicants contesting over the same land. Where that duty leads him to a determination that a dispute exists and also that he has failed to effect agreement between the parties, he is bound to make a reference to the adjudication committee. In his investigation functions he is entitled to look at all pieces of evidence provided by the parties themselves. He may require further evidence and listen to all persons he may consider necessary in making the determination whether a dispute exists. Clearly, therefore, I am of the view that the Land Registrar has the jurisdiction to decide whether there is or there is not a dispute to be referred to the adjudication committee.

In performing this function it appears to me it would be impro- [p.48] of [2001-2002] 1 GLR 42 per for the Land Registrar to determine rival claims, to the extent of delving into the ownership of land. For such decision as to who owns what land has been reserved by section 22(4) of PNDCL 152 to the adjudication committee. The subsection provides: “4. The Adjudication Committee shall determine any dispute referred to it under subsection (3) of this section.” There is no provision under PNDCL 152 which confers jurisdiction on the Land Registrar to determine ownership of land. Of course it is only where under section 23(2) he is able to secure agreement of the parties that it may be conceded that the Land Registrar can determine ownership and thereafter proceed to register such said land. The Chief Land Registrar, examining the various documents of the parties and coming out with a declaration that the land belongs to the Lenshie quarter and not La or any other quarter of Teshie, is, in my respectful opinion, a questionable decision not supported by any law. In fact it is a decision made without jurisdiction.

The Chief Land Registrar did cancel the land certification of Games International. Has he that power to cancel land certificate it had itself issued? The statute that immediately comes to mind is the Interpretation Act, 1960 (CA 4), s 11 where it is provided: “Where an enactment confers power to grant a licence, authorisation or permit, the power includes power to revoke, suspend or amend the licence, authorisation or permit.”

But on reading sections 121 and 122 of PNDCL 152, did the legislature intend the Land Registrar to have power to revoke or cancel a certificate which after its issue is evidence of a complete answer to all adverse claims on mere production of the land register, and an indefeasible title to the whole world? I will quote these sections:

“121. (1) The Land Registrar may rectify the land register or any instrument presented for registration if —

(a) the land register or instrument contains clerical errors, omissions or such other matters as do not materially affect the interests of any proprietor; or

(b) at any time, all interested persons consent to the rectification; or

[p.49] of [2001-2002] 1 GLR 42

(c) upon a survey verified and approved by the Director of Surveys, any dimension or area shown in the land register is found to be in correct.

Provided that the Land Registrar shall, before rectifying any dimension or area under paragraph (c) of the last preceding subsection shall give notice to all interested persons of his intention to rectify the land register.

(2) Upon proof of the change of the name or address of any proprietor, the Land Registrar shall, on the written application of the proprietor, cause an entry to be made in the land register recording the change.

122. (1) Subject to subsection (2) of this section, the Court may in its discretion, order the rectification of the land register by directing that any registration be cancelled or amended where it is satisfied that such registration has been obtained, made or committed by fraud or mistake.

(2) The register shall not be rectified so as to affect the title of a proprietor who has acquired any land or interest in land for valuable consideration unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought or had himself caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.”

(The emphasis is mine.) Section 121 of PNDCL 152 permits the Land Registrar to rectify the register only in respect of clerical errors and omission or such other matter that do not materially affect the interest of any proprietor. He can also rectify where all the interested persons agree to the rectification and where any dimension or area of land is shown to be incorrect he can rectify with notice to the interested parties. These are the rectifications that the Land Registrar is permitted under PNDCL 152 to effect. Other rectifications are permitted under section 122 of PNDCL 152 but such power of rectification appears to have been reserved to the courts. Under this section the court in its discretion may direct a rectification of the land register by cancellation or amendment and this it can do only where it is satisfied that the registration was

[p.50] of [2001-2002] 1 GLR 42 obtained, made or committed by fraud or mistake.

It appears to me germane to say conclusively therefore that if the Land Registrar’s power of rectification and what he can rectify has been clearly stated not to include rectification by cancellation or amendment but that power is rather granted to the court, it would be untenable for any argument to be made that the Land Registrar has power to cancel a certificate either by withdrawal, revocation or a similar act. As already mentioned by sections 18 and 49 of PNDCL 152, indefeasible title is granted any proprietor put on the land register and issued a land title certificate. To me it would be defeature of the purpose for the legislature to confer power to intermeddle with such register or certificate in the Land Registrar who it may be argued does not have adequate machinery to re-examine a certificate that it had itself issued. Indeed, reading section 112(1) of PNDCL 152, that the legislature intended the certificate to be evidence of indefeasible title appear confirmed. For even with the court which has power to rectify by cancellation, it can do so only when satisfied that the registration was obtained, made or committed by fraud or mistake. Even after satisfying itself that fraud or mistake prevailed in the registration, the registered proprietor can be denied his registration or certificate if and only if he substantially contributed to the fraud or mistake by his act, omission or default.

After the issue of the certificate to Games International, if the Land Registrar found reason why he should withdraw, cancel or revoke it, it appears to me, unless the parties including Games International consented to the rectification, the matter should have been left to the aggrieved party to proceed to court to seek the rectification on grounds of mistake or fraud. Any such rectification or purported rectification by the Land Registrar will in my humble view, be without jurisdiction. At this point, I can say with certainty that I have drawn sufficient conclusion to form the basis for grant of an order of certiorari. But has the applicant any interest for which he should apply for an order of certiorari where it is the certificate of Games International that has been withdrawn or is being threatened with withdrawal?

Looking at the basis of the applicant’s claim for certiorari, in

[p.51] of [2001-2002] 1 GLR 42 substance he is aggrieved the Land Registrar has withdrawn the certificate or drawn a conclusion to withdraw the land certificate issued to Games International when as it were he as the grantor of Games International has not been given a hearing. The question is, if the certificate of Games International has been withdrawn is it the applicant who should complain or Games International? In other words, who is the proprietor of the land to whom the certificate has been issued. Let us look at these sections. By the interpretation section to PNDCL 152, that is section 138, “proprietor” means: “In relation to any land or interest in land, the person named in the land register as the proprietor thereof; and also means the donee of a power to appoint or dispose of the same.”

Section 51(1) of PNDCL 152 states that:

“51. (1) The Land Registrar shall, upon registration of any person as proprietor of land or a lease, issue a land certificate to such person—

(a) if the person is registered as proprietor of the land with absolute title, whether on first registration or on subsequent transfer of the land;

(b) if the person is proprietor of a lease, if the leasehold is for a term of ten years or more; . . .

Looking at the land certificate No 13013 which was issued to Games International and which has been withdrawn by the Land Registrar the interest therein registered is for 50 years. It is in respect of their interest of 50 years which they applied to be registered and for which they, Games International, were registered as proprietors, that the land certificate was issued to them. If there is any withdrawal or threatened withdrawal by the Land Registrar of this land certificate, it appears to me that the complainant should be Games International and not the applicant.

The grantors of Games International, that is the applicants, looking at the lease incorporated in the land certificate issued to Games International may be the reversionary interest of the lease to Games International but it is my view that the certificate, does not automatically register the applicants reversion for them to have

[p.52] of [2001-2002] 1 GLR 42 such interest as to complain when the certificate for the 50 years’ grant is withdrawn. The decision the applicants complain of was communicated to Games International. Is there any reason why they did not complain of the withdrawal of their certificate? The applicants, not being owners of the land certificate or their interest not having been registered by the land certificate, I am of the opinion are foreign to the certificate and they do not need be given a hearing by the Land Registrar before the land certificate of Games International was withdrawn, even if wrongly, as I have sought to show.

Now, on the decision by the Land Registrar making a determination as to who owns the land, the applicant’s question is similarly that he was not given a hearing before the decision was arrived at. But looking at exhibit B there is nothing which shows that the applicant was a party or the Land Registrar knew that the applicant was an interested party in the case and should therefore have been given a hearing. Even though exhibit B mentioned and denied La ownership of the said land, there was no mention of Nmati Abonase. If the Land Registrar had mentioned Nmati Abonase, the applicant’s clan, in the decision and denied it a hearing before arriving at that decision, one can find a breach of the rule of natural justice. But that is not what happened in this case. Here again I will say that the decision contained in exhibit B is not proximate to the applicant, for him to seek to question it by certiorari. The situation here is akin to an instance of a case between two parties. And after the court or adjudicating body had made a determination as to ownership of the land between those two parties, a third party believing that he owns the land goes to court to seek an order of certiorari to quash the decision. I will conclude this ruling by stating that the nature of interest shown by the applicant is not sufficient for which an order of certiorari will have to issue in his favour. I will refuse the application and visit the same fate on the application for prohibition. I award costs of ¢2 million against the applicant.

Application dismissed. IS