REPUBLIC vs. STOOL LANDS BOUNDARIES SETTLEMENT COMMISSION AND OTHERS; EX PARTE MAMPONSU STOOL AND ANOTHER [1999-2000] 2 GLR 674

CASES REFERRED TO

(1) Sah v Darku [1987-88] 1 GLR 123, SC.

(2) Deeble v Robinson [1954] 1 QB 77; [1953] 3 WLR 975; [1953] 3 All ER 1348, CA.

(3) American Gyanamid Co v Ethicon Ltd [1975] AC 396; [1975] 2 WLR 316; [1975] 1 All ER 504, HL

APPLICATION for inter alia an order of interim injunction to restrain respondent stools from appropriating royalties accruing in respect of disputed land. The facts are full set out in the judgment.

W Adumua-Bossman for the applicants.

Gwira for the respondents.

Asiamah J. The applicants are seeking an interim injunction against the second and third respondents under the supervisory jurisdiction of the High Court and an order for an interim preservation of royalty payments in respect of the disputed stool lands which is the subject-matter of a suit between the second and third respondents on one side and the applicants on the other, pending before both the first respondent and the Court of Appeal.

The Kayireku stool is a divisional stool under the Twifo Paramount Stool. The first applicant is also a subservient stool under the Banso stool which is of a paramount status. A dispute

[p.677] of [1999-2000] 2 GLR 674 arose between two grantees of the two paramount stools and the matter was determined by a Sekondi High Court. On an appeal, the Court of Appeal in the suit, Sah v Darku [1987-88] 1 GLR 123 at 125 said, as stated in the headnote, holding (5):

“(5) The determination of the issue whether the Mamponsu Stool owned the land in dispute whereby they could make a valid grant to the plaintiffs or that the Kaireku Stool owned it to place their tenant farmers in possession necessarily involved the settling of the boundaries between the two stools. That was more so because both stools from the evidence, had exercised certain acts of ownership over the land. As soon as the situation of the boundary obtruded from both the pleadings and the evidence as incidental to the determination of the real issue, it became the duty of the trial judge as provided by section. 4(2) of the Stool Lands Boundaries Settlement Decree, 1973 (NRCD 172) to order a stay of proceedings until the boundary was finally determined. The case would consequently be remitted to the trial court for the settlement of the boundary between the two stools to be referred to the Stool Lands Boundaries Settlement Commissioner for determination and for the trial court to pronounce judgment on the basis of that determination.”

Upon the basis of this order of the Court of Appeal, the matter came back to the “trial court” which referred it to the first respondent to settle the boundaries between the respondent and applicant stools and thereafter to remit it to the trial High Court. The settlement issue has gone back to the Court of Appeal and the matter is still pending. It is during the pendency of the settlement issue that the applicants have brought this interlocutory application before the High Court.

In the course of his argument in the present application, counsel for the respondents raised, inter alia, a jurisdictional issue and I would in the first instance deal with this aspect of his objection to the competency of the High Court to entertain an application of this nature. The legal point of objection here is that the supervisory jurisdiction of the High Court exercisable over inferior courts does not extend to cover the grant of injunctions. The respondents’ counsel expressed his objection in the following words:

[p.678] of [1999-2000] 2 GLR 674

“But we are saying that the High Court cannot exercise its supervisory jurisdiction in granting orders for injunction. The supervisory powers of the High Court are limited to the prerogative writs . . . The applicants are seeking to clothe this court and the lower court with jurisdiction which they have never had. One of the few cases where an action is commenced at the High Court without a writ is by an originating motion and this is limited to prerogative writs. By its powers the first respondent is only authorised to demarcate, define and draw up disputed boundaries between stools. It has no power to grant interim injunction in respect of collecting royalties.”

The oversight jurisdiction of the High Court can be found in article 141 of the Constitution, 1992 and section 16 of the Courts Act, 1993 (Act 459). Article 141 states:

“141. The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers.”

And section 16 of Act 459 provides as follows:

“16. The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto for the purpose of enforcing or securing the enforcement of its supervisory powers.”

It can be gleaned from Act 459 that section 16 attempts to categorise the specific orders which the High Court can make to bring to order the acts of lower adjudicating bodies. I would for the meantime defer a discussion on the synchronisation of section 16 of Act 459 with article 141 of the Constitution, 1992 and try to illuminate the word “supervisory” used in both article 141 of the Constitution and section 16 of Act 459. “Supervisory” is an adjective word from the verb “supervise.” The Cambridge International Dictionary of English defines the verb “supervise” thus: “To watch over (an activity or job) to make certain that it is done

[p.679] of [1999-2000] 2 GLR 674 correctly, or to watch over (someone) to make certain that they are behaving correctly or safe.” To supervise or to exercise a supervisory authority over an adjudicating body or person entails the following responsibilities on the part of the supervisor: seeing to it that the subordinate adjudicating body acts rightly and within its jurisdictional competence and where the subordinate body has no jurisdiction to act to prevent a potential interference with a disputed right or interest, the supervisor must act to complement the work of the subordinate body whose acts the supervisory body superintends. If the supervisor cannot do this then he cannot be said to be supervising.

Learned counsel for the respondents has contended that the High Court in the exercise of its supervisory jurisdiction can only entertain an application for any of the prerogative orders, but not an application for the grant of an interlocutory injunction where the case in respect of which the application for the interim injunction has been brought is not pending before the High Court. If the High Court has jurisdiction to grant an order of prohibition as counsel for the respondent has rightly conceded, then it cannot be prevented from entertaining an application for the grant of an interlocutory injunction. The purpose or object of an order of prohibition is not different from an order of interlocutory injunction. Whilst the former is directed against the lower adjudication body, the latter is against a party or parties in a suit at the lower adjudicating body. It is axiomatic that when the law gives anything to anyone, it also gives those things without which the thing itself could not exist. So, if there is a power given to the High Court to superintend the work at the inferior courts, then whatever legal process there is to enable the High Court to exercise its supervisory jurisdiction effectively is deemed inferentially to be inclusive of the power so given. This explains why in section 16 of Act 459 the word “including” was used. The expression “issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto” suggests that the list of orders the High Court can give herein stated is not exhaustive and that any order of the class of, and having the same effect or object as those stated in that section falls within the supervisory competency of the High Court.

The word “including” in Act 459 has not been used is in any special sense and it must be given its ordinary meaning. If the legislature had intended to restrict the supervisory jurisdiction

[p.680] of [1999-2000] 2 GLR 674 of the High Court to only prerogative orders, it would have stated so specifically by using the word “only” in between “issue” and “orders” and omitting the words “including orders” altogether, or without using “only” could have substituted “consisting of for” “including” in section 16 of 459. Lord Denning in the case of Deeble v Robinson [1954] 1 QB 77, CA at 82 noted that:

“Where ‘includes’ occurs, the word or expression must be given its ordinary meaning (which is not defined) and in addition it must in relevant cases, be given a special meaning which the statutes says it to be included . . .”

The ordinary meaning of the word “including” as found in the BBC English Dictionary is: “you use ‘including’ when mentioning one or more members of a group of people or things.” The statute, Act 459, has not assigned any special meaning to “including” in the Act and so it is the intention of the statute makers that it must retain its ordinary meaning.

Section 16 of Act 459 neatly dovetails into article 141 of the Constitutions, 1992 in so for as the former elaborates the processes that need to be taken at the High Court to enable it effectively exercise its supervisory jurisdiction to preserve the status quo while the rights are established or to guarantee the fundamental human rights of parties who seek the protection of the courts.

To say that the High Court has no jurisdiction to entertain an application of the kind that is before it, is to rob it of its potency to do its supervisory work and to deny it of its inherent powers. In his book entitled Outline of Cases on the Inherent Powers referred to in the Supreme Court case of Fosuhene v Pomaa [1987-88] 2 GLR 105 at 145-146 by Taylor JSC, Jim R Carrigan gave a working definition of inherent powers and stated thus:

“From the case law can be gleaned this working definition: ‘Inherent Powers’ consists of all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective. These powers are inherent in the sense that they exist because the court exists; the Court is, therefore, it has the powers reasonably required to act as an efficient court.”

I wholly subscribe to this working definition as a useful working tool without which this court would deny its integrity and disable

[p.681] of [1999-2000] 2 GLR 674 itself to “speak up for those who can’t speak for themselves” and “do what is right and just.” It must be mentioned that the substantive case as is evident from the Sah case (supra), is still pending at the High Court, Sekondi. Even if there was no such case pending at the High Court to the extent that it has not been disposed of at the lower adjudicating body, this court has an inherent power beside section 16 of Act 459 to hear the present application.

I now turn to consider the application itself. The applicants are seeking an order from this court directing that the respondents are restrained from collecting royalties in respect of the disputed land, the subject-matter of the settlement issue before the Stool Lands Settlement Commission, until the matter is finally determined. Indeed, they are praying for the grant of an interlocutory injunction. In considering an application for an order of an interlocutory injunction, the court would have to be satisfied that the applicant has an existing legal right and once that right has been infringed the court may exercise its discretion to restrain the infringement to protect the applicant, in the words of Lord Diplock in American Cyanamid Co v Ethiecon Ltd [1975] AC 396 at 406, HL:

“[A]gainst injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where ‘the balance of convenience’ lies.”

In this action both the applicants and the respondents are each claiming the disputed land to be their respective stool land. It is not in dispute that the stool lands of the both parties are contiguous. The dispute is about where their common boundary should lies. There is certainly a serious question to be determined by the stool lands settlement commissioner and since the boundary settlement adjudicating body has no power to restrain the

[p.682] of [1999-2000] 2 GLR 674 appropriation of royalties accruing to the disputed land, this court is duty bound in its supervisory capacity to assist the first respondent to maintain the integrity and efficient performance of the courts’ judicial functions to do that which the latter has no power to do. It is the bounden duty of judges to expand the rule of law and not the rule of man. To be seen to be protecting the rights of the two parties, it would be fair and just that until the boundary dispute has been settled, both parties, the applicant and the respondent stools, are restrained from collecting whatever royalties may be accruing to the two stools. By so doing, none of the parties would be put at risk to suffer any injury.

The application is therefore granted to restrain the contesting stools from collecting the royalties. The Forestry Department which is the custodian of the stool royalties is hereby ordered not to disburse any such royalties to the parties herein but to keep same until this order is revoked or countermanded by this court or a superior court.

Application granted.

SA