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AMANKWA v. AKWAWUAH AND OTHERS


  • appeal
  • 1962-05-03
  • HIGH COURT
  • 1 GLR 324-327
  • Print

APALOO J.


Summary

Local Courts?-Jurisdiction in land causes?-Defendant raises jurisdiction and fails; contests case on merits and wins?-Plaintiff raises jurisdiction on appeal ?-Whether plaintiff entitled to succeed?-Conflict between law and justice?-Courts Act, 1960 (C.A. 9) s. 98 (1) (a)

Headnotes

The plaintiff sued the defendants in the local court for title to a house at Asafo, Kumasi. The third defendant swore to and filed an affidavit in which she alleged that the house was worth G1,500 and that all the defendants did not consent to the case being tried by the local court, whose jurisdiction in land causes is limited by section 98 of the Courts Act, 1960 (C.A. 9) to cases where the value of the land is not more than G200, or where, in spite of value, the parties consent to have the case tried by the local court. The plaintiff did not challenge the statement as to value, but the local court magistrate dismissed the objection on the ground that the affidavit was not accompanied by a motion. The defendants thereafter contested the case on the merits, and won. The plaintiff appealed. He had nothing against the judgment, on the merits, but it was argued on his behalf that the local court had no jurisdiction to try the case because the third defendant had put the value of the house at G1,500, and the defendants did not consent to the exercise of the court's jurisdiction; they merely submitted to it after their objection had been overruled.

Judgement

APPEAL from a judgment of a local court in an action for declaration of title to land.

This is an appeal from the judgment of the Kumasi Local Court delivered on the 16th June, 1961. That judgment dismissed a claim by the plaintiff for a declaration that house No. N.A. 90, Asafo, is the property of the plaintiff's family.

The appellant does not seek to quarrel with the judgment on its merits, and his counsel expressly said he did not feel able to argue on the facts. His ground of appeal is that the local court was in error in deciding this case, as it had no jurisdiction.

The proceedings show that on the 30th March, 1961, Abena Donkor, the third defendant swore to and filed an affidavit in the local court the substance of which is that the house in dispute was worth G1,500 and that the defendants did not wish to consent to the exercise of jurisdiction by the local court. It appears that a copy of this affidavit was served on the plaintiff. There is nothing in the record to show that the plaintiff disputed this sum as the value of the house in dispute. The case came before the court for the first time on the 4th April, 1961, when presumably the local court magistrate's attention was drawn to this affidavit. He noted as follows:

"An affidavit before the court without motion restraining the court not to entertain the suit for lack of jurisdiction refused by this court for the foregoing reasons: (1) the affidavit was not accompanied by motion; (2) this court has jurisdiction to decide the case provided all parties consent to it as under section 98, Courts Act, 1960, subsection (2)."

Subsection (2) of section 98 of the Courts Act, 19601 reads as 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 this case, it clearly appears from the third defendant's unchallenged affidavit, that the subject-matter of this land cause exceeds G200. There is nothing in the section of the Act on which the magistrate relies which entitles him to exercise jurisdiction, although it appears that the subject-matter exceeds G200 if there be no formal motion. Furthermore, it was brought home to him in the clearest possible terms that the defendants did not consent to the exercise of jurisdiction by him. I feel no doubt that he was in error in assuming jurisdiction in this case and my course would have been plain had the defendants raised the point of jurisdiction in this appeal.

It seems that when the defendants were overruled by the court, they then submitted to the exercise of jurisdiction, and called evidence to [p.326] rebut the plaintiff's claim. In the result, they were successful, and do not now make any complaint as to the exercise of jurisdiction by the local court.

The plaintiff now, however, contends that in the circumstances of this case, the local court erred in exercising jurisdiction. The plaintiff by his counsel argued that the defendants did not consent at any time to the exercise of jurisdiction, but that they merely submitted to it. To submit is not to consent, and therefore, says the plaintiff, the trial was without jurisdiction and void. As a proposition of justice, this argument can have no claim, but as a pure legal contention it seems to me impeccable. The question of jurisdiction, as I understand it, can be raised at any stage of the proceedings, and on appeal.

On the other hand, it was submitted for the defendants that whether they submitted or consented to the jurisdiction of the local court, it is their affair not the plaintiff's. In effect, counsel says the plaintiff ought not to undertake to fight their battle in a manner that prejudices them. It was submitted that it would be inequitable to allow the plaintiff, who himself indirectly compelled the defendants to fight this case in the local court, to argue that that court had no jurisdiction because they (the defendants) had not consented. Counsel said it is the more so, as the plaintiff does not seek to quarrel with the judgment on its merits.

In my opinion, this case exemplifies the perennial conflict that is said to exist between law and justice. I am perfectly satisfied that the plaintiff as a matter of law is entitled to take the point of jurisdiction and as I have said, his argument is unanswerable. I understand it to be good law that in certain cases a person may not be allowed to insist on his strict legal rights if it would be unjust to allow him to do so, having regard to the dealings which have taken place between the parties. That is the way it was put in the case of Hughes v. Metropolitan Ry. Co.2 by the House of Lords which first stated the principle, and by the English Court of Appeal which enlarged it in Birmingham and District Land Co. v. London North Western Ry.3 The principle is also implicit in many modern decisions such as the High Trees case,4 Buttery v. Pickard,5 Robertson v. Minister of Pensions.6 Sometimes it is a plaintiff who is not allowed to insist on his strict legal rights, at other times, it is the defendant. In the case of Djomoa v. Amargyei7 the Supreme Court on similar principles refused to allow a defendant to rely on the provisions of the Concessions Ordinances8 which provided him with a cast iron defence against the plaintiff on the ground that it would be unjust to permit him to do so.

The question that falls for determination in this case is whether in view of what had taken place between the parties, it would be unjust to allow the plaintiff to raise the question of jurisdiction in this appeal. In considering this question, it must be borne in mind that section 98, subsection (2) does not absolutely prohibit exercise of jurisdiction by the local court in a case such as the present but enables it to do so at the volition of the parties. Although the plaintiff knew or ought to be deemed [p.327] to know that in the special circumstances of this case, the local court cannot exercise jurisdiction without the consent of the defendants, he instituted the action against them in the local court without first ascertaining whether or not they are willing to so consent. When the defendants swore to an affidavit deposing to want of consent on their part, the plaintiff did not then withdraw his action against them in the local court, but was present and acquiesced in the local court magistrate making an order which impelled them to submit to his jurisdiction. The defendants were also obliged to incur the trouble and expense of defending the plaintiff's case and calling witnesses. It follows, in my judgment, that this case comes within the principle of the decisions I have cited. Accordingly, the plaintiff ought not to be allowed to raise the question of the want of jurisdiction of the local court in this appeal.

Want of jurisdiction was the only point canvassed in this appeal and in view of the conclusion I have reached on it, it follows that this appeal must fail. It is accordingly dismissed with 30 guineas costs.

Decision

Appeal dismissed.

Plaintiff / Appellant

C. F. Hayfron-Benjamin Jnr. for K. A. T. Amankwa

Defendant / Respondent

E. K. Wiredu

Referals

(1) Hughes v. Metropolitan Railway Co. (1877) 2 App.Cas. 439

(2) Birmingham and District Land Co. v. London and North Western Railway (1888) 40 Ch. 268

(3) Central London Property Trust, Ltd. v. High Trees House Ltd. [1947] K.B. 130; [1956] 1 All E.R. 256

(4) Buttery  v. Pickard [1946] 174 L.T. 144

(5) Robertson v. Minister of Pensions [1949] 1 K.B. 227; [1948] All E.R. 767

(6) Djomoa v. Amargyei [1961] G.L.R. 170

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