Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 QUIST v. KWANTRENG AND OTHERS | GhanaLegal - Resources for the legal brains

QUIST v. KWANTRENG AND OTHERS


  • New
  • 1961-10-27
  • HIGH COURT
  • GLR 605-615
  • Print

OLLENNU J.


Summary

Practice?-Bias?-Judge offers to settle case between parties, but parties do not take advantage of offer?-Whether judge precluded from hearing later appeal in the case.Practice?-High Court refuses to prohibit local court from hearing a land case?-Whether losing party in local court can raise question of jurisdiction again on appeal?-Whether High Court bound by the previous decision in the prohibition proceedings.Local courts?-Jurisdiction in land cases where land is over G200?-Courts Act, 1960 (C.A.9) s. 98 (2) and s. 149 (1).

Headnotes

The suit between the parties came before Ollennu, J. in 1958. The judge indicated that he knew the family of the parties very well, and offered to settle the dispute. He adjourned the case to be taken before another judge, so that the parties could use his services if they so desired. The parties, apparently, were not interested in a settlement. Rather the case was discontinued, and a fresh writ filed in the local court for substantially the same reliefs. Ollennu, J. did not see the parties again nor hear anything about the matter until the present appeal came before him. The plaintiff-respondent objected to his hearing the appeal on the ground that in view of the offer he made to settle the earlier suit, it is improper for him to hear the appeal.The record showed that the defendants filed a motion in the local court objecting to the jurisdiction of that court, on the ground that the land the subject-matter of the suit, is over G200 in value. The motion was not dealt with, for it seems that before it could be considered the defendants applied to the High Court to prohibit the local court from hearing the case. Acolatse, J. heard the application, and by his ruling on the 19th December, 1960, refused it. The local court was directed to proceed with the hearing. It did, and gave judgment for the plaintiff. The defendants appealed, and again took up, inter alia, the question of the jurisdiction of the local court.

Judgement

APPEAL from a judgment of the Accra Central Local Court in a land case.

This is an appeal from judgment of the Accra Central Local Court, delivered on the 30th March, 1961. Before dealing with the points which have been argued, it is necessary to set out the history of the case very briefly. In 1958, the plaintiff instituted an action against the defendants in the Land Court, Accra, claiming the same reliefs which she claims in the present suit. On the 31st March, 1960, that suit was struck out and the parties were referred to the appropriate local court by virtue of section 55 of the Local Courts Act, 19581, which came into force in or about November, 1959, and which is now repealed.

During the two and half years or so that that case was in the Land Court, it came before me on five occasions; that was between the months of June and September, 1959. On the 4th September, 1959, the last day on which it came before me, I indicated that I used to know the late K. Armah Kwantreng whose will was being called in question in the suit, and I also knew the parties to the suit, and therefore if I could assist the parties in any way to settle the dispute between them amicably without it going to trial I would gladly do so, and that for that reason I would like the case to be put on the list of a judge other than myself, so that should the parties wish my assistance extra-judicially I could give it freely. None of the parties took advantage of the offer of my service to effect settlement. The next I heard of the parties and their dispute again was last week when this appeal came before me for hearing.

The record of proceedings shows that the present matter commenced with a writ issued in the local court in April, 1960. Hearing in that court commenced on the 13th May, 1960. The Courts Act, 19602 came into force in the 1st July, 1960, repealing the Local Courts Act, 1958, under which the local court was exercising jurisdiction in the case. A new local court established under the said Courts Act, 1960, continued hearing the case by virtue of the provisions of section 149 (1) of the Act. In October, 1960, the first defendant filed a motion to register her objection to the local court continuing to exercise jurisdiction in the matter because the subject-matter of the suit is land with buildings thereon valued over G200. The motion was fixed for hearing on the 13th October, 1960, but on that day it was adjourned to the 30th November, 1960, for hearing. Meanwhile, i.e. on the 23rd November, 1960, the defendants applied to this court for an order to prohibit the local court from continuing to exercise jurisdiction in the matter. The court granted leave on the 28th November, 1960, for the order to be applied for, and in the meantime made an order upon the local court, on the said 28th November, 1960, prohibiting it from proceeding with the case. When the first defendant's motion came on for hearing on the adjourned date, the 30th November, 1960, the local court adjourned it sine die. On that same day, in view of the order of this court served upon him, the local court magistrate made an order stopping the further hearing of the case "with liberty to plaintiff to seek such relief as may be deemed meet". [p.608]

It appears that the application for an order for prohibition was refused by this court constituted by Acolatse, J. on or about the 19th December, 1960, and the local court was accordingly notified, which then had the case listed for the 26th January, 1961. It adjourned it to the 6th February, 1961. On that day, the first defendant showed to the local court a copy of a notice of appeal she had filed against the ruling of this court refusing her application for an order of prohibition, and a receipt for fees she had paid for its filing. The local court then adjourned the case to the 20th February, 1961, "for further directions in the absence of which the case will proceed". Hearing of the case was resumed on that date, the 20th February, 1961, and concluded on the 30th March, 1961, with the first defendant's motion objecting to the jurisdiction of the local court still remaining undecided, and a further objection raised by the third defendant also undetermined. The defendants have appealed from the whole proceedings and the judgment of the local court. The respondent raised objection to my hearing this appeal on the grounds that since I declined in 1959, to hear the case at first instance upon the reasons I gave, I ought not to hear the appeal. This objection makes nonsense of sections 84 and 85 of the Courts Act, 1960, which direct that the court and the officers thereof should encourage and promote reconciliation among parties over whom the court has jurisdiction "and encourage and facilitate the settlement in an amicable way without recourse to litigation of matters in difference between them". In my opinion even if a judge, in pursuance of the provisions of the said sections 84 and 85 of the Courts Act, 1960, had the parties to a suit before him in chambers or elsewhere in an attempt to encourage and facilitate amicable settlement out of the court and his attempts failed, he will not thereby be precluded from trying the case. How much more in this case when the hint I threw out concerning my willingness to assist the parties to settle their dispute out of court was not heeded by either party. I consider it a violation of my judicial oath to decline to exercise jurisdiction upon objections like these. Certainly every Ghanaian judge born and bred in this country must know a large number of litigants who come before the courts with their disputes day in day out. If the jurisdiction of a judge should be ousted simply because he happens to know one party or the other or both parties to a suit, there will be very few cases indeed which Ghanaian judges can try.

At the hearing of the appeal on the 23rd October, 1961, counsel for the appellants asked leave to argue, along with the grounds of appeal originally filed, additional grounds filed on the 18th October, 1961. The additional grounds read: "The local court magistrate was wrong in hearing the suit as the local court in the circumstances could not in law exercise jurisdiction over the suit". That application was opposed on the grounds that if the appellants were allowed to take the question of jurisdiction at this stage it would mean that the court as constituted would either be reviewing or sitting on appeal on the ruling of Acolatse, J. given in the prohibition proceedings. In support of that submission counsel [p.609] cited the case of Dankwa v. Fuller3. In that case a party who was appealing from a judgment of a native appeal court to the Land Court in a land suit, was granted leave by the Land Court upon an application made ex parte to file his grounds of appeal out of time. When the appeal came on for hearing in the same court but differently constituted, all conditions of appeal having been fulfilled, the learned judge who then constituted the court to hear the appeal, ruled that the enlargement of time granted ex parte earlier in the same proceedings was null and void. It was held by the Court of Appeal that the order enlarging time was a valid order of a competent court, and could be set aside either on appeal by a higher court, or on review in the court where it was made only if that court is constituted by the same judge who made it; and that it was not within the competency of a court of co-equal jurisdiction or of the same court differently constituted to declare such order invalid. The important principle in that case is that once a court is seized of a case it has control of it until the case is finally determined in that court. While it is seized of the case, any order or decision which one judge makes in it, even though erroneous, remains part of the proceedings in the court. If that order is to be set aside in the court in which it is made, the procedure will be by review, and in that case the review must be made only by the very judge who made the said order or gave the said judgment.

Now the order of Acolatse, J., which is relied upon was made in proceedings on a prerogative writ. Those proceedings determined finally in this court by the said order. The present appeal proceedings are not a continuation of the proceedings on the prerogative writ, therefore, even though the point raised in this appeal may be substantially the same as the one canvassed in the proceedings on the prerogative writ, the High Court as now constituted is entitled to make an order in the case which in its opinion the justice of the case requires. The ruling of Acolatse, J. given in the prerogative proceedings may be cited to the court, not as authority binding upon it, but as judgment which it should treat with respect. Should the judge in the subsequent proceedings find himself unable to subscribe to the views expressed by the judge in the former proceedings, he could say so, and make such other order as to him may seem meet.

It was submitted on behalf of the appellant that as the local court's jurisdiction to entertain a land cause or matter is limited to land whose value does not exceed G200, it could only continue with a land cause when the parties agree that the local court should exercise the jurisdiction. It was further submitted that the land, subject-matter of this suit, far exceeds G200 in value; moreover the defendants did not give their consent to the local court exercising jurisdiction, on the contrary they objected to the local court hearing the case. Therefore, it was submitted there was complete absence of jurisdiction in the local court, and the whole of the proceedings before it, including its judgment, are null and void.

For the respondent it was submitted that since that case was pending in a local court immediately prior to the coming into force of the Courts [p.610] Act, 1960,4 and since section 149 (1) of that Act provides for the continuance of pending cases, the local court had jurisdiction to hear the case to conclusion in spite of the objection raised by the defendants to the jurisdiction of the local court and in spite of the value of the land. Section 149 (1) of the Act reads as follows:

?"149 (1) Every case pending before a Local Court immediately before the commencement of this Act shall be continued and concluded by the corresponding Local Court referred to in this Act".

The words "corresponding Local Court referred to in this Act?" must be interpreted to make sense, as to be consistent with the other provisions of the Act. When so interpreted they could mean one thing and one thing only, and that is, that the corresponding local court must be a court established under the Courts Act, 1960 and vested with jurisdiction territorial and otherwise to entertain the particular suit.

Under section 10 (1) of the Local Courts Act, 1958,5 a local court established under that Act had unlimited jurisdiction in land causes. But under section 98 (2) of the Courts Act, 1960, the local court established under that Act has no jurisdiction in a land cause where it appears that the value of the land in dispute exceeds G200. Jurisdiction cannot be conferred by implication, it must be conferred specifically, otherwise there is none.

Since it is quite clear that the value of the land, subject-matter of this suit, which was pending in a local court before the Courts Act, 1960, came into force far exceeds G200, there is no corresponding local court established under the Courts Act, 1960, vested with the necessary jurisdiction to "continue and complete" the said suit. In my opinion the said section 149 (1) of the Courts Act, 1960, did not confer jurisdiction on the local court to entertain a suit where the local court does not possess jurisdiction under the Act to entertain a particular suit. The only condition upon which the local court could become vested with jurisdiction is the consent of the parties that it should hear the case, but such consent was not given.

The case of Sikpo v. Lassinueh6 provides analogy in this respect. The suit was a land suit commenced in a native tribunal exercising jurisdiction under the Native Jurisdiction Ordinance7 now repealed. Under that Ordinance a Provincial Commissioner's Court was empowered to transfer a case from one native tribunal to another native tribunal, or to the court. The court as defined in the said Native Jurisdiction Ordinance meant "Court" as defined under the Courts Ordinance8 now repealed, and included the Divisional Court, the Court of the Provincial Commissioner, the Magistrate's Court, and the Court of the District Commissioner. Of those courts the Divisional Court was the only court which had [p.611] original jurisdiction in land cases, the Court of the Provincial Commissioner had only appellate jurisdiction in land causes on appeal from decisions of native tribunals. The Provincial Commissioner's Court by order, transferred the said land cause from the native tribunal to itself and tried it at first instance; no objection was taken to its exercise of that jurisdiction. Appeals from decisions of the Court of the Provincial Commissioner lay to the Full Court. On appeal from the decision of the Provincial Commissioner's Court the question of jurisdiction of the Provincial Commissioner's Court was raised for the first time in the Full Court. It was contended in answer to that submission that once the Provincial Commissioner was vested with competent jurisdiction to transfer a land case from a native tribunal to "the Court", under the Supreme Court Ordinance,9 and since "the Court" to which he transferred the case was a court established under the Supreme Court Ordinance, that court must be deemed to have become vested with jurisdiction to hear and determine the suit by reason of the transfer. It was held that the order for transfer though made by a court of competent jurisdiction, could not by itself confer jurisdiction on a court to which the case is transferred if that court had no jurisdiction otherwise, and that it is only a court which by the statute creating it is vested with original jurisdiction in land causes, to which a transfer could validly be made. It was held therefore that the proceedings before the Provincial Commissioner were null and void, notwithstanding the fact that no objection was raised to its jurisdiction at any stage during the course of the trial in that court; and the appeal was allowed.

Therefore in this case even though Acolatse, J. might, in his ruling in the prohibition proceedings, have expressed the view that the local court had jurisdiction, that ruling of his will not operate to vest the local court with jurisdiction if it did not possess jurisdiction otherwise.

Secondly, a refusal to make an order for prohibition, is not conclusive that the court which the High Court declined to prohibit from exercising jurisdiction is vested with jurisdiction. For example if A sued B in the district magistrate's court for recovery of possession of premises on the grounds that B was his tenant, but the pleading disclosed that B was not a tenant at all but a person claiming title adverse to that of A, and that the suit is a land suit pure and simple, and yet the district magistrate's court took upon itself to try that land case, a refusal by the High Court to make an order for prohibition against the district magistrate's court will not vest the district magistrate with jurisdiction even though in the order refusing the application for prohibition, the judge of the High Court might have expressed the opinion that the district magistrate had jurisdiction in a land suit. It is still open to a party objecting to the jurisdiction of the district magistrate's court again to raise the question of the jurisdiction in the district magistrate's court itself. He may also raise it in the High Court on appeal from a decision of the district magistrate on the whole case. [p.612]

And thirdly, the remedy of prohibition is alternative to the remedy of appeal on the question of jurisdiction; therefore if the High Court should decline to exercise its discretion to prohibit the wrongful exercise of jurisdiction, a party is not thereby precluded from resorting to his alternative right to raise the question of jurisdiction as part of his grounds of appeal against the whole proceedings and judgment.

Next it was submitted on behalf of the respondent that having for some months taken part in the proceedings before the local court after the 1st July, the day on which the Courts Act, 1960, came into force, without raising objection to the jurisdiction of the local court, the appellants must be deemed to have acquiesced in the jurisdiction of the local court and to have impliedly consented to the local court exercising jurisdiction; and that in any event the point was raised too late.

On this submission it must be pointed out that consent cannot confer jurisdiction except when the statute so provides. The principle is stated in Halsbury's Laws of England (3rd ed.) Vol. 9, page 352, para. 824 as follows:

"Where, by reason of any limitation imposed by statute, charter, or commission, a court is without jurisdiction to entertain any particular action or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the court, nor can consent give a court jurisdiction if a condition which goes to the jurisdiction has not been performed or fulfilled".

See also Green v. Rutherforth,10 R. v. Shropshire County Court Judge11 and Hinde v. Hinde.12

The first important element in the principle of estoppel by acquiescence in any form is knowledge by the person acquiescing that he has a right. Therefore unless a party is shown to have knowledge of the existence of his right in respect of any particular subject-matter, he cannot be deemed to have acquiesced in the violation of that right by his mere inactivity or silence. Now although objection to jurisdiction is a point of law, the knowledge of the existence of a right to object and of the conditions upon which to raise the objection are questions of fact. It is only after a party has become seized with knowledge of the existence of that fact of his right to object that he can raise objection, not before. Therefore, the mere fact that the Courts Act, 1960, came into force on the 1st July, 1960, and the defendants did not raise the objection to the jurisdiction before October, 1960, is no bar to their raising it at any stage at which the fact is brought to their knowledge that unless they gave consent the local court should not exercise jurisdiction in this particular case. In this respect it must be pointed out that it is the duty of the local court to bring that fact to the notice of the parties. There is nothing on the record to show that the local court brought the provisions of the said section 98 (2) of the said Act to the notice of the parties as it should. Objection to jurisdiction can be raised at any stage; it may even be raised for the first time on a second appeal. [p.613]

Again in my opinion the words "where it appears" used in section 98 (2) of the Courts Act, 1960, have the same meaning as the similar words "whenever it shall appear" used in certain sections of the erstwhile Native Courts Ordinances and now reproduced in section 132 of the Courts Act, 1960. The first sentence of the section reads:

"Whenever it shall appear to any Court that any civil cause or matter brought before it is one properly cognisable by a Local Court, the Court shall stop the further progress of such civil cause or matter before it ?...?"

Those words have always been interpreted to mean at any stage of the proceedings, that is from the day the suit first came before the court up to the date of judgment: see Djabartey v. Awua II,13 Benin v. Ababio.14 Therefore the defendants are not barred by reason of any delay in raising the question at a very late stage, or even on appeal; they are entitled to raise it at any stage of the proceedings at which it became clear that the value of the land, the subject-matter of the suit exceeds G200.

But the submission that the defendants must be deemed to have acquiesced in or consented to the jurisdiction of the local court is based upon an assumption that by section 98(2) of the Act, there is an obligation upon a defendant to object to the jurisdiction of local court, such that if he fails to object he should be deemed to have agreed to the exercise of the jurisdiction. That assumption is erroneous. The section 98 (2) 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".

The local court being an inferior court, nothing is deemed to be within its jurisdiction unless it is expressly shown on the face of the proceedings that it is vested with jurisdiction in the particular matter. Therefore the proceedings of an inferior court must show on their face that its jurisdiction has not been exceeded: see Halsbury's Laws of England (3rd ed.) Vol. 9, pages 349-350, paragraph 820, and see also R. v. Chancellor of St. Edmundsbury Ipswich Diocese, ex parte White15. Therefore if at any stage in the proceedings before a local court in a land cause, it should appear that the subject-matter exceeds G200, the jurisdiction of the local court becomes ousted forthwith. It then becomes the imperative duty of the local court at that moment and at that stage to stop the case before it, call the attention of the parties to the absence of its jurisdiction, and strike the case out at once, unless, after he had so called their attention, the parties thereupon expressly consent that he should exercise jurisdiction in the matter. Since as an inferior court, the jurisdiction of the local court in any matter must be apparent on the proceedings before it, the giving of the necessary consent which should vest the local court with jurisdiction to continue hearing such a case, must be given expressly and be recorded as part of the proceedings, it is not consent which should merely be implied, it is consent which must be positively expressed, [p.614] otherwise it will not appear on the face of the proceedings and there will be a complete absence of jurisdiction.

Since the local court as an inferior court is deemed to have no jurisdiction in a land cause unless the land does not exceed G200 in value, the local court should not exercise jurisdiction in a land cause unless it is shown initially that the value of the land does not exceed G200. Therefore a plaintiff who institutes a land cause in a local court takes upon himself the onus of establishing that the said court is seized of competent jurisdiction, that is, that the value of the land does not exceed G200.

Again section 98 (2) of the Courts Act, 1960, as earlier pointed out does not require a defendant to raise objection to the jurisdiction of the local court to entertain a suit where it has appeared that the value of the subject-matter exceeds G200, therefore his failure or omission to raise objection cannot give the local court the jurisdiction which the statute says it just does not possess. On the contrary the section prohibits the local court from exercising jurisdiction in the circumstances, unless it obtains the consent of the parties, therefore a local court cannot exercise jurisdiction in such a case unless it is clearly shown on the face of the proceedings that both parties to the suit have expressly given consent to the local court to hear the case.

Now as earlier pointed out, what this court is dealing with is an appeal from a judgment of the local court and the court is bound by the record of proceedings from the local court. That record of proceedings contains evidence which makes it appear that the land in dispute, without any buildings on it, was valued at G400 as far back as 1924. This is shown by exhibit 1. The local court magistrate himself referred to that fact in his judgment indicating that he was aware of it. Again part of the record, i.e. exhibit 2, a building permit granted by the Accra Town Council in 1923, in respect of a portion of the buildings on the land, gave the estimated value of that portion of the buildings as G2,966. And there are affidavits forming part of the record, also referred to by the local court magistrate in the course of the proceedings showing that the property was valued at some G20,000 or more. There was no affidavit filed or evidence tendered by the plaintiff denying the values as given. And there is the further evidence that the defendants persistently brought the value of the property to the notice of the local court magistrate and pointed out to him that they were not agreeing to his court hearing the case, as the jurisdiction of his court was ousted by that value. One of those objections was raised by the first defendant by motion. This, as pointed out earlier, the local court magistrate adjourned sine die on the 30th November, 1960, and never considered it. Another of those objections was raised by the third defendant on the 20th February, 1961. In connection with that objection, the court referred itself to other affidavits on the record which showed the value at some G20,000. The court then made the following order:

?"By Court: I shall embody my ruling on the points raised by 3rd defendant in my judgment if necessary. Let the case proceed". [p.615]

But when he came to give this judgment he did not consider it necessary to make a ruling on this all-important point. There was no necessity for the local court to make any ruling in such circumstances, except an order admitting that it had no jurisdiction to continue the suit.

It means that during the course of the proceedings and at various stages thereof it appeared too clearly that the value of the land far exceeded G200, and therefore the local court magistrate had no jurisdiction. Yet deliberately the local court magistrate refused to take cognizance of the mandatory prohibition in section 98 (2) of the Courts Act, 1960. On the contrary, he conferred upon himself jurisdiction which did not belong to him. The proceedings and judgment are in those circumstances null and void for want of jurisdiction and must be set aside.

The appeal is allowed, the proceedings and judgment of the local court are declared null and void for want of jurisdiction and are set aside including the order as to costs; any costs paid to be refunded. The appellants will have their costs in this court fixed at 40 guineas and their costs in the local court fixed at a nominal figure of G10.

Decision

<P>Appeal allowed.</P>

Plaintiff / Appellant

E. Akufo-Addo

Defendant / Respondent

J. Arthur

Referals

(1) Dankwa v. Fuller (1958) 3 W.A.L.R. 168

(2) Sikpo v. Lassinueh (1922) F.C. '22, 29

(3) Green v. Rutherforth (1750) 1 Ves.  Sen. 462; 27 E.R. 1144

(4) R. v. Shropshire County Court Judge (1887) 20 Q.B.D. 242

(5) Hinde v. Hinde [1953] 1 All E.R. 171, C.A.

(6) Djabartey v. Awua II (1938) 4 W.A.C.A. 202

(7) Benin v. Ababio (1957) 2 W.A.L.R. 216

(8) R. v. Chancellor of St. Edmundsbury & Ipswich Diocese, ex parte White [1947] 2 All E.R. 170

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