HIGH COURT, HO
DATE: 30TH NOVEMBER, 1962
BEFORE: SIRIBOE, J.
NATURE OF PROCEEDINGS
APPEAL from a judgment of the Ketu Local Court, Division 1, in a land cause delivered on the 8th June, 1962, in favour of the plaintiffs-respondents. Only one ground of appeal was argued, namely, that the trial court had no jurisdiction to entertain the suit having regard to the value of the land in dispute.
COUNSEL
E. B. Awoonor-Williams for the defendants-appellants.
I. N. K. Wuaku for S. A.X. Tsegah for the plaintiffs-respondents.
JUDGMENT OF SIRIBOE J.
In support of the only ground argued, counsel referred to section 98 (2) of the Courts Act, 19601(1) as it was before its amendment by the Courts (Amendment) Act,2(2) section 27. The subsection reads as
[p.156] of [1962] 2 GLR 155
follows: “Where it appears that the subject-matter of a land cause exceeds £G200 the court shall not exercise jurisdiction except with the consent of the parties.” In his submissions on the point, counsel contended that the “consent” of the parties must be an express and not a tacit consent; especially where one of the parties, as in the present case, raises an objection to the jurisdiction of the local court trying the case. If such a situation arises, counsel argued, the value of the land must be ascertained, and if found to be more than £G200, then
jurisdiction cannot be exercised, unless the parties have given their consent to the court to exercise it.
A record of it must then be made before hearing proceeds. Counsel next referred to the appellant’s protest lodged by way of an affidavit against the court’s jurisdiction when it came to consider an application by the respondents for an interim injunction, and the ruling of the court on the matter. He also referred to a passage in the trial court’s judgment to the effect that the appellants had consented to the court hearing the case, and that when judgment had been reserved to be given, they later sought to withdraw that consent.
In answer to all this, it was submitted that no consent was given by the appellants nor was any obtained from them at any stage of the proceedings. The joinder of certain persons and the participation of these and the appellants in the proceedings were done to enable them to press forward the protest, for if they had backed out, the court might have proceeded with the case against them, having once appeared.
The arguments on behalf of the respondents were that the local court magistrate explained the provisions of section 98 (2) to the parties, after which the latter consented to the court trying the case. This, counsel said, is contained in the court’s order made on the application for an interim injunction and the opposition thereto. Continuing, counsel pointed out that it was as a result of the consent so given that the appellants got certain people joined to the proceedings and hearing began up to the stage of judgment, just before which an attempt was made by the appellants to withdraw the former consent. In the circumstances, it was the contention of counsel for the respondents that the question of jurisdiction was properly dealt with by the lay magistrate, who saw to it that the necessary consent had been given by the parties before proceeding to hear the case.
What I understand this to mean is that counsel for the respondents agrees that the value of the subject-matter involved in the case is over £G200, and that the protest against the court’s jurisdiction was properly lodged, but says that upon an explanation by the trial magistrate of the provisions of section 98 (2) the parties consented to the case being tried by him. According to counsel, this was embodied in the local court magistrate’s order made on the application for interim injunction to which I shall here refer in extenso for the purpose of this judgment. “This is an application by the plaintiffs herein for an injunction of the court to restrain the defendants from doing anything whatsoever on the land in dispute. . . In their affidavit opposing this application, the defendant state that the value of the alleged land is estimated at more than £G200 and for that, as their sole ground, the application should be refused because this court has therefore no jurisdiction to entertain this motion or the suit itself.
[p.157] of [1962] 2 GLR 155
The plaintiffs further filed a written submission in which they maintained that they, as plaintiffs, know better the land they claim from the defendants herein and that the value of the land they claim is about £G100 only.
With due consideration to the arguments of the two parties herein, I am satisfied that the plaintiffs’ application herein is in order. I don’t agree with the defendants that because they estimate the value of the disputed land at more than £G200, therefore this court has no jurisdiction to entertain this application and the suit itself. The fact is that this court has jurisdiction to try this case even if both parties agreed that the value of the land involved is above £G200 and none of the parties withdrew his consent to allow the court to determine it. See section 98 (2) of the Courts Act, 1960. I therefore found no substantial ground for the defendants’ opposition to the application herein. I accordingly allow the application.”
In the light of the above, it is abundantly clear that the appellants objected to the jurisdiction of the local court magistrate in trying the case, but that objection was overruled.
I do not agree with the view expressed by counsel for the respondents that the magistrate by his ruling as set out above, explained the provisions of section 98 (2) to the parties following which they gave their consent to the hearing of the case. The passages I have quoted put it beyond any shadow of doubt that the magistrate overruled the appellants’ objection to his jurisdiction. I go further and say that nowhere does it appear that appellants gave their consent to the case being tried before hearing proceeded.
Upon consideration of the provisions of the section relied on by appellants, I am of the opinion that a limitation was placed on the exercise of jurisdiction by the local court where the value of the land was over £G200. The consent required to be given must be an express consent, and must be recorded to remove any future doubt. In some cases it may not be easy to say at sight what the value is, unless some evidence is led, or prior thereto, the parties give an idea of it. When that happens, my view is that having regard to section 98 (2) it would be the duty of the trial magistrate to consider whether he should proceed or not with the hearing. If the value is found to be more than £G200, his duty would be to explain the legal position to the parties, and he could then proceed to deal with the case, if the necessary consent of the parties was given and a record of it made.
In the case before me, not only was a protest lodged earlier on against the trial court’s jurisdiction, but from the plaintiffs-respondents’ own evidence it was manifestly clear that the land in respect of which the appellants as plaintiffs sought declaration of title, exceeded the value of £G200. This was sufficient to put the trial magistrate on his guard as to the exercise of his jurisdiction in terms of section 98 (2).
The arguments of both counsel went on to show that, before judgment, a formal objection to the trial court’s jurisdiction was taken in the form of a motion supported by affidavit, followed by an application to the High Court, Ho, for an order of prohibition against the court’s jurisdiction. These actions showed that the appellants had not given consent to the trial of the case by the local court magistrate, but the latter proceeded to deal with it as though he had been given the necessary consent.
[p.158] of [1962] 2 GLR 155
The mere fact that the appellants and those later joined as co-defendants participated in the proceedings up to the time the second objection to jurisdiction was taken, did not amount to giving their consent to the trial of the case. The reason for doing so was adequately explained by counsel for appellants.
In respect of the second protest, the trial magistrate before proceeding to deliver his judgment stated as follows: “Upon their own consent, this court heard the case to a finish with only a judgment to be delivered and I therefore see no point in this application which I accordingly dismiss.”
In Jowitt’s Dictionary of English Law at pages 455 and 456 appears the following definition of “consent”:
“An act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil on either side. Consent supposes three things—a physical power, a mental power, and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind . . . A consent may be withdrawn at any time before the order is perfected.”
In the light of the above, and having regard to all the circumstances as herein explained, I am of opinion that no consent properly so-called, was given by the appellants or obtained from them throughout the proceedings. The exercise of jurisdiction by the trial court in the manner indicated was therefore wrong and in contravention of the provisions of section 98 (2) as it stood before the amendment.
The appeal on the ground of want of jurisdiction accordingly succeeds. The judgment of the trial court is set aside and so are the consequential orders made including that as to costs. If any costs have beenpaid in pursuance thereof, such costs to be refunded. In this court, I award costs of 45 guineas in favour of the appellants.
It is further directed that the case be sent back to the trial court for the necessary steps to be taken to have it transferred to the High Court, Ho, for hearing de novo, in terms of the Courts (Amendment) Act, section 27, as it is clear the trial court cannot exercise jurisdiction in the matter. The costs in respect of the abortive trial to abide the result of the trial de novo.
DECISION
Appeal allowed.
Case remitted to trial local court for transfer to High Court, Ho, to be heard de novo.
J. D.
