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ANYIRA II v. CONSTRUCTION COIGNENT TOGO AND OTHERS


  • New
  • 1960-05-12
  • HIGH COURT
  • GLR 121-126
  • Print

OLLENNU J.


Summary

Land?-Trespass?-Occupier's right to sue?-Local courts?-Jurisdiction?-Interpretation of expression "properly cognizable" by local court?-Local Courts Act, 1958 s. 55.

Headnotes

This was an action in the High Court for damages for trespass. The plaintiff representing the Padi Akpor family claimed that the defendants had trespassed upon the family land and had begun quarrying operations with resultant damages to trees and crops.The defendants (a road construction company) admitted entering on the land and clearing part of it. They pleaded they had done so under an agreement with the Manya Krobo State Council. The Council was joined as a third party but subsequently on the application of the defendants struck out from the suit.The co-defendant, Tetteh Dedu II, Mantse of Narkodje-Soom-Sawer, Yilo Krobo and head of the Narkodje family claimed that the land was a portion of a larger area of land owned by his family. He admitted that the plaintiff and his family were in present occupation but only as his licensees.At the trial, in his closing address, counsel for the defendants submitted that the case related to ownership, possession and occupation of land and as customary law applied the parties should be referred to the competent local court in accordance with section 55 of the Local Courts Act, 1958.The co-defendant did not appear and was not represented at the trial.

Judgement

ACTION for damages for trespass to land. The facts are fully dealt with in the judgment.

(His lordship referred to the pleadings and continued):

The action before the court is one for trespass, a wrong to possession of land. The only person entitled in law to a relief for trespass is the person in possession of the land at the date of the trespass or the person in whom is vested the right to immediate possession of the land. Now it is admitted by the defendants in their statement of defence and the letter exhibit "I", that the plaintiff and his family were in possession and occupation of the land. It is also admitted by the co-defendant, as shown in his statement of defence, that the plaintiff and members of this family are the persons in possession and occupation of the land. Again it is admitted by the defendants as well as by the co-defendants that the defendants entered upon the land without the permission of the plaintiff who is in possession of the land. Therefore even upon the pleadings the plaintiff is entitled to the relief he seeks and the only matter which becomes outstanding is, the quantum of damages.

Now as between the plaintiff and the co-defendant, the co-defendant raised the issue of his title as allodial owner of the land alleging that the plaintiff and members of his family are his licensees vested with determinable interests only in the land. The onus of establishing as between him who is not in possession of the land, and the plaintiff and members of the family who are in possession of the land, that he, the co-defendant, is the person in possession whom title to or freehold interest in the land is vested, is upon the co-defendant. But even if the co-defendant were to succeed in establishing that the freehold of the land is vested in him, and that the plaintiff and members of his family are his licensees having only a determinable interest, he still cannot prevent the plaintiff from pursuing his relief against an invader of his possession and occupation, and the plaintiff would be entitled all the same to damages for trespass against any person who disturbs his said possession and occupation without authority. [p.123]

The case came before the court on the 6th of May, 1960, when all the parties were either present or represented and it was adjourned by consent to yesterday, 11th May, 1960, for trial. The co-defendant did not appear and was not represented at the trial. The plaintiff and a witness called by him gave evidence which established that the plaintiff is the head of his family and that he and members of his family are in possession. That evidence I would say is absolutely redundant in view of the admissions already made by defendants and co-defendant. That evidence went further to show that the land was acquired by the plaintiff's ancestors many generations ago from the people of Aperede, and that the family have been in continuous possession and occupation since the date of its acquisition. That evidence given by the plaintiff stands unchallenged and I am bound to accept it.

(His lordship then said that he accepted the evidence as to the defendants' entry on the land and the destruction of a number of palm and mango trees and foodstuff farms and continued).

As stated earlier, the onus of proving that the freehold of the land is vested in the co-defendant and not in the plaintiff is upon the co-defendant. The co-defendant has not appeared to lead evidence of his said title to the land and the evidence of title led by the plaintiff, as I have already pointed out, had not been challenged in any way. I am bound, therefore, to hold that as between plaintiff and the co-defendant, the plaintiff is the owner of the fee simple interest in the land trespassed upon by the defendants, and the only person entitled to relief against the trespassers.

It was submitted on behalf of the defendants that they went on the land upon the authority of the said Manya Krobo Stool; this submission overlooked the plea that it was with the authority of the Manya Krobo State Council that they went upon the land. However, a letter dated the 14th May, 1959, by which the defendants were informed of the plaintiff's ownership and possession of the land removed all doubts as to whether the defendants' grantors could deal with the land without the plaintiff's knowledge and consent.

An agreement purported to have been entered into by one Chief W.A. Bah Ngwah IV, Chairman of the Manya Krobo Stool Treasury Finance Committee and the defendants was put in evidence to show that they went on the land with the authority of the Manya Krobo State Council or the Manya Krobo Stool. Since their licensors or grantors whoever they are, admit that the plaintiff is the owner of the land in dispute no other question arises, except to point out that if the land had been stool land, the proper persons to administer it would be the local council as provided by section 72 of the Local Government Ordinance Cap. 64, and in any event, the only person entitled to deal with it according to custom would be the occupant of the stool acting with the consent and concurrence of his principal elders. Chief W.A. Bah Ngwah IV, Chairman of the Manya Krobo Stool Treasury, not being the Konor of Manya Krobo would have no legal authority whatsoever to deal with the Manya Krobo Stool lands unless further evidence were led to show either that the Manya Krobo Stool is vacant, or that the occupant of [p.124] that stool with his principal elders agreed and consented to Chief Bah Ngwah acting for the stool. But this is purely academic because the defendants' grantors have admitted the plaintiff's title to the land.

In the course of his address, counsel for the defendants submitted that having regard to the pleadings, particularly the statement of defence filed by the co-defendant and the evidence as a whole, the suit is one relating to ownership possession and occupation of land, and the law applicable is customary law; consequently, it was submitted, the court should act upon the mandatory provision of section 55 of the Local Courts Act, No. 23 of 1958, stop the further progress of the suit in this court and refer the parties to the competent local court.

Two questions arise for determination upon that submission:-

1. Can this point be taken at this late stage?

2. Does it appear or ought it to appear to the court at this stage in the proceedings that the suit is one properly cognizable by a local court?

The point taken by counsel is one of jurisdiction which can be raised at any stage, even on appeal. Moreover, I interpret the words "whenever it shall appear to the court" used in section 55 of the Local Courts Act, to mean, at any stage of the proceedings where it appears to the court, that is, from the day the suit comes before the court for the first time up to the last proceedings, but before judgment is delivered.

It was in his final address in the proceedings that learned counsel took the point, and so since judgment has not yet been delivered the point can be taken.

And now to the second point. Taking the writ of summons, the pleadings of all the parties, and the evidence, does it appear to me, or ought it to appear to me at the stage in the proceedings when the point was taken, i.e., at the close of the case, that this suit is one properly cognizable by a local court? This raises the further question as to the correct interpretation of the term "properly cognizable" used in section 55 of the Local Courts Act. In my opinion those words must be interpretated to mean something more than competent jurisdiction. If jurisdiction were all that the legislature intended the section would have been drafted to read: "wherever it shall appear to any court that any civil cause or matter brought before it is one within the jurisdiction of a Local Court." A local court may have jurisdiction in a suit, but it may, for some reason or the other, not be competent otherwise to entertain it, or the circumstances of the case may be such that justice may not appear to be done if the suit is tried by a local court. Thus in the case of Richardson v. Eshun (6 W.A.C.A. 141) it was held that a land suit based upon customary law was not one which was properly cognizable by a native court, because it involved complicated measurements and interpretation of plans and other documents.

In this case, although the plea of the co-defendant raised the question of his title, yet the co-defendant has not counter-claimed, and the defendants do not rely upon his title for their entry upon the land. In substance therefore, the co-defendant is not asking for a declaration of his title as against either the plaintiff or the defendants; he is not justifying [p.125] the defendants' trespass either. All he seeks to do is to defeat the plaintiff's claim. This in law is analogous to a trespassers pleading jus tertii.

In my opinion, a suit involving a defence of this nature is too complicated for a local court, and is therefore not one which is properly cognizable by a local court.

Again although a suit may relate to land, for example a claim for rents, or mesne profits from land, yet if its determination of the issue joined does not involve a decision on ownership, possession and occupation of land, it is not a land suit. Thus in the case of Attipoe v. Badu and others (5 W.A.C.A. 171) it was held that the issue of title to land being res judicata between the parties, a claim for rent involving an amount which is beyond the jurisdiction of a native tribunal in personal suits, is a claim within the jurisdiction of the High Court, and outside the competency of a native tribunal. See also the case of Denu v. Dzelu, etc (unreported) where it was held that the Divisional Court, and not a native tribunal, is the court vested with jurisdiction to entertain a claim for proceeds of a coconut plantation, where title to the plantation is res judicata as between the parties and the amount claimed is above 100, the limit of the jurisdiction of the then Paramount Chief's Tribunal.

The only difference between those cases and the present one is that the estoppel in those cases is by record while in this case it is by admission.

In the present suit, both the defendants and the co-defendant are estopped from disputing the possession and occupation of the plaintiff; the only issue for determination is the quantum of damages, and the amount of damages claimed exceeds G50. The jurisdiction of a local court in personal suits is limited to a claim or demand of G50: section 10 (vi) of the Local Courts Act. Therefore this suit is not one which is properly cognizable by a local court.

Finally on the question of stopping the case and referring the parties to the competent local court, I cannot help expressing surprise at the attitude of counsel in raising this matter. The statement of defence must have made it apparent to counsel that his clients were admitting liability on the claim, and that all that remained for determination was the quantum of damages and the attempt of the defendants to obtain indemnity against their licensors. The case has been ripe for hearing since January, 1959, and but for the fact that it has had to be adjourned several times either to enable the defendants to have their licensors joined or for them to settle the amount of damage with the plaintiff out of court, the suit would have been determined long before the 23rd November, 1959, the date on which the local courts Act became effective in this region. In those circumstances it will work hardship upon the plaintiff if the case were to be stopped in this court and he had to institute fresh action in a competent Local Court. In my opinion this is a proper case in which I must exercise the discretion given me in proviso (e) to section 55 of the Act in favour of retaining the case. In exercise of that power I retain the suit in this court.

In the result I hold that the defendants have trespassed upon the land, the ownership, possession and occupation of which is vested in the plaintiff; I am satisfied that the defendants had sufficient warning to [p.126] make them stop their trespass but they failed to do so; I say this because, I accept the evidence of the plaintiff which came out in cross-examination that he was obliged to sue because in spite of all the warnings the defendants continued to work on his land.

In all the circumstances I feel that the plaintiff is entitled to substantial damages which I assess at G200.

I am satisfied that the co-defendant's act in applying to be joined to defend the suit is not bona fide. It was done with a purpose to obstruct the plaintiff in obtaining relief for the injury done to him. The co-defendant was wrongly joined; he must therefore be struck out from the suit and he is accordingly struck out.

There will therefore be judgment for the plaintiff against the defendant company for damages for trespass assessed at G200.

Decision

<P>Judgment for plaintiff.</P>

Plaintiff / Appellant

Puplampu

Defendant / Respondent

Acquah for defendants. No appearance by or for co-defendant.

Referals

(1)   Richardson v. Eshun 6 W.A.C.A. 141;

(2)   Attipoe v. Badu II 5 W.A.C.A. 171;

(3) Denu v. Dzelu and Others, West African Court of Appeal, May 31, 1946 unreported.

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