AMETAMEH v. ATAKPLAI III [1960] GLR 129

DIVISION: IN THE HIGH COURT (LANDS DIVISION), ACCRA

DATE: 27TH MAY, 1960

BEFORE: OLLENNU, J.

CASES REFERRED TO

(1) Tackie v. Nelson and Others 12 W.A.C.A. 419;

(2) Denu v. Chief Dzelu and Others W.A.C.A. May 31, 1946 unreported.

(3) Anyira v. Construction Coignent Togo and Others [1960] G.L.R. 121.

NATURE OF PROCEEDINGS ACTION for perpetual injunction and damages for trespass to land.

Moore (with him Wuaku) for plaintiff.

Dove for Kwaw-Swanzy for defendant.

JUDGMENT OF OLLENNU, J.

The claim in this case is for injunction and damages for trespass; and the subject matter is an island called Dormellam Kewu, in the River Volta, in the Klepa Division of Osudoku. The plaintiff pleaded that he is owner in possession of the said island, and that the defendant has wrongfully entered upon his said island and been committing waste by taking and carrying away sand therefrom. In his statement of defence the defendant denied the plaintiff’s ownership, possession and occupation of the land; he also denied trespassing on the said island as alleged, and pleaded (1) that the place where he has been taking sand from is about two and a half miles away from the island the subject of the suit, and (2) that the court has no jurisdiction in the matter. In reply the plaintiff pleaded that the defendant is estopped (1) by his conduct and (2) by an arbitration award from denying his, the plaintiff ‘s ownership, possession and occupation of the island. On the question of jurisdiction of this court to entertain the suit, counsel for the defendant submitted as a preliminary objection that since the defence has put the plaintiff’s title and possession of the island in issue, the suit is one properly cognizable by a local court, and the court should therefore stop the hearing of the case and refer the parties to a competent local court in compliance with section 55 of the Local Courts Act, No. 23 of 1958. Opposing that submission, counsel for the plaintiff contended that the writ of summons included a claim for perpetual injunction, a relief which the local court is not competent to entertain, and therefore upon the authority of Tackie v. Nelson and Others (12 W.A.C.A. 419) this court has jurisdiction which it should not decline to exercise. [p.131] of [1960] GLR 129

Upon that preliminary point I ruled that at the stage where the point was taken, there was nothing to satisfy me that the suit is one properly cognizable by a local court, and stated that I would give reasons for my said ruling at a later stage.

Having heard the whole evidence and submissions of counsel on both sides I am more confirmed in the opinion than ever that this is not a suit which is properly cognizable by a local court.

In my opinion a prayer for injunction as one of the reliefs sought in a writ of summons does not by itself show that the suit is not one which is properly cognizable by a local court. But where it appears either upon the pleadings or from the whole of the proceedings that prevention of the continuance of a wrong is the main or one of the main injuries sought to be remedied, a claim for an injunction will make the suit one not properly cognizable by a local court. If it were not so, litigants will circumvent the Local Courts Act and thereby defeat the intention of the legislature, by including a claim for injunction or a claim for a relief which is not within the competency of a local court in all claims they make before the court in order to compel the courts to exercise jurisdiction which, by reason of section 55 of the Local Courts Act, they would not otherwise exercise.

Upon this principle I proceed now to give the reasons for my ruling that this suit is not one properly cognizable by a local court.

In 1957 the plaintiff instituted an action in this court against one Chief Tetteh Ablor and others for declaration of his title to the identical island now in dispute, and for an injunction; he recovered judgment against those defendants on the 12th March, 1959. It is admitted by the defendant that it was he who took the plaintiff to instruct solicitors and counsel in that suit, and that he supported the plaintiff throughout in the assertion of his said right to ownership and possession of the island. By his said conduct in that case, the defendant held out the plaintiff to counsel and through him to this court that the plaintiff is the owner of the island. Having done that he cannot now be heard to dispute the plaintiff’s title to and possession of that very island. Again on the 1st of January, 1960, the defendant took out a writ of summons in the Local Court of Division 2 Osudoku/Krobo against the plaintiff for declaration that by reason of an agreement entered into between him and the plaintiff in April, 1957, he the defendant was entitled to enjoy the island in dispute with the plaintiff as joint owners in the event of the plaintiff obtaining judgment in his case against Chief Ablor and others. It is admitted by the defendant that he voluntarily submitted that dispute to an arbitration held by Asafoatse Clemence Kwamla Tettey VI, and others, and that the award of that arbitration was against him. The defendant said, however, that he was not satisfied with the said award and is therefore disregarding it, and he is going back to the local court to prosecute his said claim. This he is not entitled to do; once he has voluntarily submitted to the arbitration he cannot resile and he is bound by the award thereof. Therefore, the dispute as to the plaintiff’s title to and possessions of the island is res judicata. The defendant is

[p.132] of [1960] GLR 129 estopped by the award of that arbitration from disputing the plaintiff’s ownership, possession and occupation of the island.

The plaintiff’s ownership, possession and occupation of the island is therefore not in issue; in fact, counsel for the defendant at a stage in the proceedings made that submission. Therefore the claim for injunction is a main claim in the suit, not a mere ancillary claim which is tacked on as a matter of expediency to a substantive claim, and which, therefore, cannot be considered by the court should the plaintiff’s title to the land fail.

That principal claim of the plaintiff for injunction is not within the competency of a local court; therefore the court cannot stop the case and refer the parties to a competent local court.

As regard the claim for £100 damages it will be observed that since the plaintiff’s title to and possession of the land cannot be in issue, and since the amount of damages claimed exceeds £50, the limit of the jurisdiction of a local court in personal suits, this claim cannot be one properly cognizable by a local court.

On this point I would refer to the case of Denu v. Chief Dzelu and Others (unreported) where it was held inter alia, that a claim for mesne profits of amount above £100, the limit of the jurisdiction of a Paramount Chief’s Tribunal in personal suits, where title is res judicata between the parties, is not one which is properly cognizable by a native tribunal. See also judgment of this court in the case of Anyira v. Construction Coignent Togo and others ([1960] G.L.R. 121) where the point is more fully dealt with.

(His lordship then considered the evidence as to the claim for trespass and awarded the plaintiff damages of £100).

DECISION

Judgment for plaintiff.