Ghana Legal Information Institute - Supervisory Jurisdiction https://old.ghalii.org/tags/supervisory-jurisdiction en Ahadzi and Another Vrs Sowah (Subst. by Samuel Nortey) and Other (J4/33/2018) [2019] GHASC 16 (21 March 2019); https://old.ghalii.org/gh/judgment/supreme-court/2019/16 <div class="field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><div class="field-label">Flynote:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/el" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">EL</a></div><div class="field-item odd"><a href="/tags/supervisory-jurisdiction" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Supervisory Jurisdiction</a></div><div class="field-item even"><a href="/tags/land-use" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Land use</a></div></div></div><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>This case concerned a long standing land dispute. The appellants herein appealed against the judgement by the Court of Appeal that reversed the judgement by the High Court was which went in favour of the appellants.</p> <p>The appellants claim to the land was based on purchase from a third party. In support of their case, they presented a land certificate. The defendants contended that the land claimed by plaintiffs fell within their domain, so they counter claimed for a declaration of title. </p> <p>The High Court found that the respondents failed to produce sufficient evidence to prove that the land was rightfully theirs, as per the requirements of s11 of the Evidence Act of 1975. The appellants, however, proved their case.</p> <p>The Court of Appeal reversed the High Court judgement, on the sole ground of a 1992 judgement that declared that the land belonged to the defendants.</p> <p>The Supreme Court, therefore, had to reconsider the evidence and finally settle the dispute. The court found that a close reading of the 1992 judgement casts doubt on the correctness of the Court of Appeal’s position. It found that the 1992 judgement did not actually concern the land in question and that the Court of Appeal, therefore, erred in its finding. Further, upon review of the evidence, the court found that the balance of probabilities favored the appellants. </p> <p>Accordingly, it restored the first judgement, with an adjustment to the amount of general damages.</p> </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong> IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p><strong>IN THE SUPREME COURT</strong></p> <p><strong>ACCRA – A.D. 2019</strong></p> <p> </p> <p><strong>                            CORAM:       BAFFOE-BONNIE, JSC (PRESIDING)</strong></p> <p><strong>                                                  GBADEGBE,  JSC</strong></p> <p><strong>                                                   PWAMANG, JSC</strong></p> <p><strong>                                                   DORDZIE, JSC</strong></p> <p><strong>                                                   KOTEY, JSC                                          </strong></p> <p><strong>                                                                                  CIVIL APPEAL</strong></p> <p><strong>                                                                                  NO. J4/33/2018</strong></p> <p> </p> <p><strong>                                                                                  21ST MARCH, 2019</strong></p> <p>1.     MRS AGNES AHADZI</p> <p>2.     PIONEER MALL LTD                 ……..          PLAINTIFFS/REPONDENTS/APPELLANTS</p> <p> </p> <p>VRS</p> <p> </p> <p>1.    BOYE SOWAH</p> <p>(SUBST. BY SAMUEL NORTEY)</p> <p>2.    NII NORTEY ADJEIFIO</p> <p>3.    NUUMO ADJEI KWANKO II     ……..        DEFENDANTS/APPELLANTS/RESPONDENTS</p> <p> </p> <p>JUDGMENT</p> <p> </p> <p><strong>PWAMANG, JSC:-</strong></p> <p>This is an appeal against the judgment of the Court of Appeal dated 4th June, 2015 wherein the Court of Appeal reversed the judgment of the High Court dated 4th July, 2011which went in favour of the plaintiffs/respondents/appellants. In this judgment we shall refer to the parties by their descriptions as in the trial court.</p> <p><strong>BACKGROUND OF THE CASE. </strong></p> <p>The case was commenced in 2000 and concerns a parcel of land at Okpoi-Gonno  in Accra. In the course of the litigation 1st defendant died and was substituted and 2nd defendant too died but he was not substituted. 3rd defendant was originally not a party to the suit but he applied and was joined. The plaintiffs’ claim to the land in dispute was based on purchase form Bortei Alabi family of Nungua who acquired it by customary grant from the Nungua Stool, had it documented in 1991 and registered under the Land Title Registration Act, 1986 (PNDCL 152) with Land Certificate No GA 9043 dated 16th March 1994. Upon the transfer of the land 2nd plaintiff was issued a Land Certificate No GA 13523 dated 22/3/1999. In their statements of defence the defendants contended that the land claimed by plaintiffs fell within land of Kle Musum Quarter/Tsie We Family of  Teshie so they counter claimed for declaration of title. The 1st and 2nd defendants were sued because, according to the plaintiffs, they sold part of their land to persons who started to build on it and 3rd defendant was joined to the suit for the reason that he alleged to be the head of Tsie We family. However, this alleged capacity of 3rd defendant was vigorously challenged by the 1st and 2nd defendants who were members of that family.</p> <p>The substantive  issues set down for trial in the High Court were;</p> <p><strong>i)              </strong><strong>Whether or not the plaintiffs are bona fide grantees of the land by virtue of Land Certificates Nos. GA 9043 and GA 13523,</strong></p> <p>ii)             <strong> Whether or not the land in dispute forms part of Kle Musum Quarter land at Teshie, </strong></p> <p>iii)            <strong>Whether or not 3rd defendant’s title has priority over plaintiffs and their grantor , and </strong></p> <p>iv)            <strong>Whether or not the plaintiffs’ registration is fraudulent. </strong></p> <p>A director of 2nd plaintiff gave evidence on behalf of the plaintiffs, tendered their land certificates and called two witnesses who testified in support of their case. The substitute for 1st defendant testified and relied on a number of documents and judgments tendered in evidence but did not call any witness. 3rd defendant gave a power of attorney to one Samuel Nii Adjei Duah to testify on his behalf but he too did not call any witness.</p> <p>In his judgment, the High Court Judge held that 3rd defendant had no capacity to represent Tsie We family and dismissed his case but 3rd defendant did not appeal. The appeal which went before the Court of Appeal was filed by 1st defendant against the judgment of the High Court granting plaintiffs their reliefs. That notwithstanding, the 3rd defendant has filed a statement of case in this second and final appeal. Clearly, he cannot be heard as the appeal is against the decision of the Court of Appeal to which he was not a party. See <strong>Anang Sowah v Adams [2009] SCGLR 111.</strong> We notice that the plaintiffs misled the 3rd defendant by stating in their Notice of Appeal that he stood to be affected by the appeal and included his name for service but the Court of Appeal did not make any order either in favour of or against the 3rd defendant which may be varied in this appeal. Furthermore, since he did not challenge the High Court decision that he has no capacity in the case it means he was not a proper party to the case to begin with and is not entitled to be heard. In the circumstances we shall disregard his statement of case.</p> <p><strong>THE HIGH COURT JUDGMENT</strong></p> <p>After the High Court dismissed the case of the 3rd defendant the trial judge considered the evidence led by defendant’s on the one hand and the plaintiffs and their witnesses on the other hand and at page 351 of the record he observed as follows;</p> <p><strong>“The substitute’s evidence was empty and shorn of all the vital corroborative corollary that ought to ground any relief in terms of ownership of family land. Please see Ollennu’s Principles of Customary Land Law2nd Edition page 141-142.</strong></p> <p><strong>Mr John Aidoo Lawyer for the plaintiff made the following comment in his written submissions as regard the evidence of the substitute. He said;</strong></p> <p><strong>‘Not only did he fail to indicate the precise extent of his land by way of dimensions or other people he shares boundary with. Even worse was his inability to particularly show any connection between the said exhibits tendered by him and the disputed land’.</strong></p> <p><strong>The substitute, to put it mildly, was just mechanical in his evidence.”</strong></p> <p>Then at page 352 the trial judge concluded as follows’</p> <p><strong>“The 1st defendant failed to produce any evidence that would be considered sufficient (sic) so that a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. See Evidence Act, 1975 (sic) NRCD 323 at Section 11 thereof.</strong></p> <p><strong>The standard of proof required of a party in ownership of land suits is very well settled. Specifically under Section 11(1) and (4) and 12(1) &amp; (2) of the Evidence Act. The burden of persuasion requires proof by preponderance of the probabilities. So that a party like the plaintiff in this case who is asserting title to land must do so to the degree of certainty of belief in the mind of the court (sic) of facts by which this court must be convinced of the existence of those facts as being more probable than otherwise.</strong></p> <p><em><strong>I am convinced that the plaintiffs by their testimony have proved their case by the preponderance of the probabilities and are entitled to their reliefs. The plaintiffs have earned this view of the court quite aside from the fact that the defendants proved no match under the circumstances of the case. The plaintiffs set out to discharge the burden on them by the testimony of the 2nd plaintiff and other credible witnesses.”</strong> </em></p> <p>The trial judge thereafter examined the evidence in detail and stated that he was impressed by the testimony of plaintiff and his witnesses as against the defendants.</p> <p><strong>COURT OF APPEAL JUDGMENT</strong></p> <p>The main ground upon which the Court of Appeal reversed the finding of the trial judge on the evidence is captured at page 426 of the record in the following words;</p> <p><em><strong>“Had the trial court properly evaluated the evidence, the plaintiffs ought to have lost the case on the sole ground that by the 1992 High Court judgment exhibit 9 the land belongs to the KLE MUSUM QUARTER of Teshie to which the defendants’ family belongs”.</strong> </em></p> <p>The Court of Appeal in their judgment indicated other grounds for their decision but those issues appeared to be premised on the assumption that Exhibit ‘9’ was conclusive that the land in dispute in this case belongs to Kle Musum quarter of Teshie. They initially observed that, having regard to the documents relied upon by the parties, the trial judge ought to have <em>suo moto</em>  ordered a superimposition of the maps tendered in evidence or visited the land to obtain a clear picture of the area but then they held that since the land in dispute was clear the case could nevertheless be determined. At page 423 they said that;</p> <p><strong>“Fortunately, the fact that the parties are <em>ad idem</em> that the land is at Okpoi Gonno makes a resolution of the fundamental issue possible. Our duty now is to shift (sic) through and determine from the evidence on record including the several documents and judgments that were tendered whether, as contended by the appellant, there has ever been a binding decision on the ownership of Okpoi Gonno.”</strong></p> <p>That the parties were <em>ad idem</em> as to the land in dispute is further confirmed by the fact that in the course of the trial the 1st defendant amended his counterclaim and prayed for declaration of title to the exact land described by the plaintiffs which is shown on the map in the Land Certificate No 9043.</p> <p>As stated earlier, the Court of Appeal saw Exhibit ‘9’ as the binding judgment on ownership of Okpoi Gonno lands. Exhibit ‘9’ is a judgment of the High Court presided over by Omari Sasu J dated 20th February, 1992 in Suit No L993/81 between Adjei Onanko II, who sued for land said to be at Okpoi Gonno on behalf of Kle Musum Quarter of Teshie, against one Ibrahim Mensah Komieteh also of Teshie who claimed that the Teshie Stool granted the land to his father. It appears that there was no appeal after the judgment. The Court of Appeal claimed that Omari Sasu J <strong>“held that the equitable and beneficial interest or title in the land in dispute <em>described as being at Okpoi Gonno</em> (sic) is vested in Kle Musum quarter”.</strong></p> <p><strong>APPEAL TO SUPREME COURT</strong></p> <p>In their Notice of Appeal in this court the plaintiffs stated only one ground of appeal namely; the judgment is against the weight of the evidence adduced at the trial. Though it was indicated in the notice of appeal that further grounds of appeal would be filed upon receipt of the record, none have been filed. Where an appeal is filed against a judgment on the ground that it is against the weight of the evidence, the appellate court is required to comb through the whole record of appeal and determine for itself if, having regard to the relevant law in the case and the evidence, the court from which the appeal has been brought was justified in its findings and conclusions. See <strong>Tuakwa v Bosom [2001-2002] SCGLR 61. </strong></p> <p>Plaintiffs at paragraph 18.0 of their statement of case argued that; <strong>“Though he (respondent) relied on various judgments, he did not show that the judgments he had covered the land of the plaintiffs.” </strong>This submission goes to the heart of the judgment of the Court of Appeal since, according to them, Exhibit ‘9’ covered the land in dispute. However, we have discovered that a close reading of Exhibit ‘9’ casts a serious doubt on the correctness of that fundamental statement in the judgment of the Court of Appeal, namely; that Omari Sasu J held that equitable and beneficial interests in Okpoi-Gonno lands belongs to Kle Musum quarter of Teshie. Permit us to quote Omari Sasu J at length from pages 128 to 129 of volume 2 of the record;</p> <p><em>“It must be observed here that it is not the whole of defendant’s land which is in dispute. What is in dispute is the area coloured green in exhibit ‘C’. This area in dispute is roughly between 1/3 and ½ of the total land of defendant. This court in the course of the trial visited with the parties and their respective counsel Okpoi-Gonno, the land in dispute, ANETE’s village and crossed the Accra-Tema motorway to ADJIRINGAO.</em></p> <p><strong><em>From what was seen, OKPOI GONN VILLAGE where defendant lives is completely outside the area in dispute.</em></strong><em> Even though defendant maintained that since the village was founded by his late father his descendants have continued to live at the original OKPOI GONN, defendant’s witness ODOI KWAME (DW1) said defendant is not living at the original site of OKPOI GONN. <strong>Be the true position as it may, what was observed during the visit is that the only human habitation or human activity this court found within the area in dispute which is coloured green in Exh C was the village of ANETE.</strong> This man claims he was granted his settlement by the plaintiff quarter. Apart from ANETE’s settlement which is within the land in dispute there were no farms or settlements within the land in dispute. I accordingly find as a fact and hold that defendant is not in possession and occupation of the land in dispute.” </em></p> <p>Omari Sasu J concluded his judgment thus; <em>“What is left is equitable or beneficial interest or tile. This I declare is vested in plaintiff’s KLE MUSUM QUARTER in respect of the land in dispute, which land is coloured green in Exh C.”</em></p> <p>By “the land in dispute” Omari Sasu J was obviously referring to his description of it upon the visit which excluded Okpoi Gonno. What is clear to us from the above quoted passages is that the land in dispute in the suit in Exhibit ‘9’ did not include OKPOI GONNO and the judgment that was delivered did not declare Kle Musum quarter to be owners of Okpoi Gonno lands. The second point of note is that, irrespective of the manner Kle Musum quarter described the land they claimed in their statement of claim in that suit, the map they tendered which was superimposed on the map of Ibrahim Mensah Komieteh did not extend to cover Okpoi Gonno where Ibrahim Mensah Komieteh was living at the time of the case. These facts which were personally observed by the High Court judge and stated in his judgment are binding against defendants since they relied on Exhibit ‘9’ in this case.  It is revealing that the defendants decided to tender Exhibit ‘9’ without the accompanying composite plan referred to in the judgment which showed the extent of land Kle Musum quarter claimed in that suit. In any event, since in that case the claim of Kle Musum did not extend to Okpoi Gonno, if defendants had tendered the composite plan which was the basis of the judgment in Exhibit ‘9’ the question here would have been why has their claim now been extended to Okpoi Gonno which they did not claim in the 1981 suit? Therefore, the Court of Appeal, with due regards, fell in error when they held that in Exhibit ‘9’ the High Court held that Okpoi Gonno lands belong to Kle Musum quarter. On the contrary, Exhibit ‘9’ would act as estoppel against Kle Musum quarter from laying claim to Okpoi Gonno lands since in the earlier suit they did not claim those lands. Consequently, we reverse that finding of the Court of Appeal and take the view that by Exhibit “9” Okpoi Gonno lands are not part of Kle Musum quarter lands.</p> <p>The Court of Appeal by stating that Exhibit ‘9’ was a judgment binding on the parties in the current case treated it as <em>res judicata</em> but in law a party who seeks to rely on <em>res judicata</em> is required to plead and prove the elements of the <em>res judicata</em>. In the case of <strong>In Re Sekyedumase Stool Affairs; Nyame v Kesse alias Konto [1998-99]SCGLR 476,</strong> Acquah, JSC (as he then was) at pages 478 to 479 of the Report said as follows;</p> <p><em>“The plea of res judicata really encompasses three types of estoppel: cause of action estoppel, issue estoppel in the strict sense and issue estoppel in the wider sense. In summary, cause of action estoppel should properly be confined to cases where the cause of action and the parties (or their privies) are the same in both current and previous proceedings. In contrast, issue estoppel arises where such a defence is not available because the causes of action are not the same in both proceedings. Instead it operates where issues, whether factual or legal, have either already been determined <strong>in previous proceedings between the parties</strong> (issue estoppel in the strict sense) or where issues should have been litigated in previous proceedings but, owing to “negligence, inadvertence, or even accident,” they were not brought before the court (issue estoppel in the wider sense), otherwise known as the principle in Henderson v Henderson (1843) 3 Hare 100; See also In re Yendi Skin Affairs; Andani v Abudulai [1981] GLR 866. CA. The rationale underlying this last estoppel is to encourage parties to bring forward their whole case so as to avoid a succession of related actions”</em></p> <p>So the three conditions for invoking issue estoppel are that;</p> <p>1.    The same issue must have been decided in the earlier case;</p> <p>2.    The judicial decision in the earlier case must have been final; and</p> <p>3.    The parties in the current case must be the same parties in the earlier case or their privies;</p> <p>See also the House of Lords case of <strong>Carl Zeiss Stiftung v Rayner and Keeler Ltd (No. 2) [1976] AC 853.</strong></p> <p>In the instant case, <em>res judicata</em> would not apply because, first of all, the subject matter of the previous judgment did not cover Okpoi Gonno land which is the issue the Court of Appeal sought to determine in this case. Secondly, the plaintiffs and their grantors were neither parties in the earlier case nor are they privies of Ibrahim Mensah Kometeh who claimed he got the land from the Teshie Stool. This analysis applies in respect of the other judgments that the defendants  tendered and relied upon at the trial. They failed to prove that the subject matter decided upon and the parties in any of those cases were the same as in the present case.</p> <p>We have observed that the Court of Appeal, being under the impression that Exhibit “9” held that Okpoi Gonno lands are part of Kle Musum lands, stated in their judgment that if the plaintiffs had conducted a search before acquiring the land they sued for it would have come to their attention that Kle Musum Quarter registered a declaration at the Lands Commission in 1965 claiming ownership of the land in dispute in this case. In the first place, as has been submitted by the plaintiffs in this appeal, which we are in agreement with, there was no evidence before the court to the effect that the land in dispute in this case was within Kle Musum quarter land so that claim by the Court of Appeal was, with the greatest respect, misconceived. It was the defendants who as their main defence alleged that plaintiffs’ land was part of Kle Musum quarter land covered by series of judgments and the 1965 Declaration but that was denied by the plaintiffs wherefore it was set down at the application for directions as an issue for determination at the trial. Under those circumstances, the burden of proof of  that issue was upon defendants to introduce sufficient evidence to avoid a ruling by the court against them. Sections 11(1), 14 and 17 of the Evidence Act, 1975 (NRCD 323) provide;</p> <p><strong>11. Burden of producing evidence defined </strong></p> <p><strong> (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.</strong></p> <p><strong>“17. Allocation of burden of producing evidence </strong></p> <p><strong> Except as otherwise provided by law, </strong></p> <p><strong> (a) the burden of producing evidence of a particular fact is on the party against whom a finding  on that fact would be required in the absence of further proof; </strong></p> <p><strong>14. Allocation of burden of persuasion </strong></p> <p><strong> Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.</strong></p> <p>The combined effect of sections 11(1), 14 and 17 of NRCD 323 is that if a party, such as the defendant in this case, fails to discharge the burdens of producing evidence and persuasion in respect of any issue of fact which are upon him, the court is obligated to find against him on that issue. In the case of <strong>Total Ghana Ltd v Thompson [2011] 1 SCGLR 458</strong> this court, speaking through Anin Yeboah, JSC, said as follows at page 463 of the report;</p> <p><em>“We think that by its conduct of neither calling the police alleged to have investigated the complaint against the plaintiff nor the person who had allegedly made statements that had implicated the plaintiff, the defendants may be said to have admitted plaintiff’s claim that the allegations made against him were untrue. In the particular context of this case, in our thinking, an obligation on the part of defendant company to credible evidence to the trial court that would render the allegation on which its suspension of plaintiff was based, more probable than the version of a denial by plaintiff. By the operation of the relevant sections of the Evidence Act, 1975 (NRCD 323), relating to the burden of producing evidence, in particular, sections 11(4) and 14 of the Act, the defendant left the trial court with no option than coming to the conclusion that the allegation made against the plaintiff that had informed his suspension was untrue.”</em></p> <p>In the above case, though Total Ghana Ltd was the defendant, it carried the burden of proof on the averments they made in their defence regarding the grounds for dismissal of the plaintiff. They tendered only the police investigation report without calling the investigator to testify, which the Supreme Court held did not amount to sufficient proof. In similar vein, the defendants in the instant case tendered a number of judgments and the 1965 Declaration by Kle Musum quarter without proof that the plaintiffs’ land was covered by these documents. As that issue was specifically set down for trial at the application for directions, this court, as an appellate court, is required to review the evidence on record and determine the case guided by the allocation of the respective burdens as was done in <strong>Total Ghana Ltd v Thompson</strong> (supra). In the light of our comments on Exhibit “9” and the other documents tendered by defendants, we are of the opinion that defendants failed to prove that the land in dispute is part of Kle Musum quarter lands referred to in the 1965 declaration.</p> <p>Besides the failure of defendants to prove that plaintiffs land is covered by the 1965 Declaration, we have noticed that the probative value of that declaration by itself alone as proof of title of Kle Musum quarter to the land covered by it has been rejected by the Court of Appeal and the Supreme Court in some of the judgments tendered by the defendants themselves in this case. The map attached to the 1965 declaration tendered as Exhibit “7” can be found at page 104 of the record and the settlement of OTINSHI is therein indicated to be within the land declared by Kle Musum quarter as its land. Exhibit ‘3’ tendered by the defendants is a judgment dated 17th November, 2000 delivered by Asare Korang J in a case filed by Dr Theodore Adjei Osae and Another in which they claimed against Kle Musum quarter for declaration of title to Otinshie lands. That decision of the High Court in favour of the plaintiffs and against Kle Musum quarter was affirmed by the Supreme Court which judgment dated 7th May, 2008 can be found at page 308 of volume 1 of the record. In that case Kle Musum quarter relied on the 1965 declaration among other grounds to claim ownership of Otinshie lands but that was rejected by the court in the following terms;</p> <p><strong>“Exhibit B was also tendered in the suit entitled Nii Adjei Obadzen II versus Nii Adjei Onanka II, Court of Appeal 11th May 1982 (unreported), where the observation was made that the said exhibit was a self serving document unsupported by any allodial owner and unilaterally prepared.</strong></p> <p><strong>I have myself observed already that the decision to order the survey in 1961 of Kle Musum lands beyond the railway line was unilateral and unsupported by law or custom. The Statutory Declaration, Exhibit B, cannot therefore be regarded as carrying any weight or influence as far as Kle Musum quarter lands are concerned. </strong></p> <p><strong>Assuming Exhibit B was at any time published, the publication had no legal significance because as Dr Odame Larbi (D1W6) said, the decision that Statutory Declarations be given wide publication was an administrative and not a legal decision.”</strong></p> <p>The finding of the Court of Appeal referred to by Asare Korang J and his own finding, which has been affirmed by the Supreme Court, is to the effect that the 1965 Declaration of Kle Musum quarter was, like all statutory declarations claiming ownership of land, a self-serving document. See also the cases of <strong>In Re Ashalley Botwe Lands [2003-2004] SCGLR 420 and Mondial Venner (Gh) Ltd v Amuah Gyebu XV [2011] 1 SCGLR 466.</strong> The Court of Appeal in the instant case were bound by their previous decision and that of the Supreme Court on the status of the Kle Musum Declaration of 1965 and ought not to have relied on the comments of a High Court and accorded the Kle Musum Declaration special status.</p> <p>Haven discounted the several documents tendered by the defendants, we are left with the testimonies of the parties, the documents of the plaintiffs which were in respect of the particular land in dispute in this case, and the evidence of the witnesses called by the plaintiffs. The plaintiffs’ tendered their grantors’ document of title showing that as far back as 1991 the Bortei Alabi family documented a grant of the land acquired in accordance with customary practices from the Nungua Stool. They had the land surveyed by the Director of Surveys as part of their application to register the land under the Land Title Registration Law and in 1994 they were issued with Land Title Certificate. Two witnesses from the Nungua Stool testified in support of the grant to the Bortei Alabi family. From the evidence on record, it was in 2000 that the defendants entered the land through persons they had sold portions to and that  sparked off this litigation. The defendants had no description of the actual land in dispute and had to rely on plaintiff’s document to describe the land they counter claimed for. At the start of the case the plaintiffs applied and were granted on order of interim injunction restraining the defendants and their grantees from developing the land pending the final determination of the suit. The defendants ignored the order of interim injunction wherefore the plaintiffs applied for their attachment for contempt of court. The court even went as far as making an order for the arrest of defendants’ workmen. In the 1st defendant’s statement of case he sought to rely on the structures built during this period in the teeth of the litigation and in violation of the court’s orders as acts of possession that should enure to the advantage of defendants. Such developments cannot have priority over  plaintiffs grantors dealing with the land which on the evidence on the  record was as far back as 1991, nine years earlier. See <strong>Ankrah v Ofori [1963] 2GLR 403.</strong></p> <p>We have evaluated the whole of the evidence of the plaintiffs as against that of the defendants and are of the view that since in the Declaration of Kle Musum quarter they stated that they originally purchased the land from the Nungua Stool and the plaintiffs trace their grant from the Nungua Stool, the failure by defendants to lead any evidence to prove that the disputed land is part of the area originally purchased from the Nungua Stool undermined their claim as they acknowledged the ownership of the Nungus Stool. See the case of <strong>Apapam Stool v Ataa (1957) 1 WALR 117.</strong> Therefore, considering the relative strengths of the rival cases, that of the plaintiffs who claim a purchase from the admitted owners looks more probable and ought to have been preferred by the Court of Appeal. The decision to reverse the trial court was in the circumstances unreasonable.</p> <p>The Court of Appeal in their judgment made an issue of the discrepancy in the size of the land as stated in the lease between the Nugua Stool and Bortei Alabi family and what is recorded in the 2nd plaintiff’s Land Certificate. The former document had 13.80 acres and the later 11.398 acres. The appellants in their statement of case argued that since the acreage in the certificate is smaller than that in the lease there ought not to be any problem. The respondent did not make any submissions in this appeal on this aspect of the case but suffice it to say that by section 36 of PNDCL 152, the Registrar of Lands may require the Director of Surveys to survey land for the purposes of the Land Title Registration Act. We have taken notice of the fact that the Director of Surveys signed the map in the Land Certificate tendered by the plaintiffs. As for the attachment of the lease of Bortei Alabi family to the certificate of 2nd plaintiff that has been explained in the body of the certificate and the Memorials. The interest registered for 2nd plaintiff is the unexpired term of the lease of Bortei Alabi family and the interest is subject to the terms and covenants of that lease, hence its attachment. Besides, the interest of the Bortei Alabi family was acquired under customary law and a document only adds to such customary interest but cannot derogate from it. See <strong>Ankrah v Ofori &amp; Ors [1974] 1 GLR 185 C.A. </strong></p> <p>The appellants have argued before us that the registration of their interest in the land makes their title indefeasible except it is proved that the registration was made by mistake or fraud. That was the import of the first issue that was set down for determination in the trial. This is what the statute provides;</p> <p><strong>“Effect of Registration  </strong></p> <p><strong> 43. Indefeasibility of registration </strong></p> <p><strong> (1) Subject to subsections (2), (3) and (4) of this section and to section 48, the rights of a registered proprietor of land whether acquired on first registration or acquired subsequently for valuable consideration or by an order of a Court, are indefeasible and shall be held by the proprietor together with the privileges and appurtenances attaching to the land free from any other interests and claims. </strong></p> <p><strong>(2) The rights of a proprietor are subject to the interests or any other encumbrances and conditions shown in the land register. </strong></p> <p><strong>(3) This section does not relieve a proprietor from a duty or an obligation to which the proprietor is otherwise a trustee. </strong></p> <p><strong>(4) The registration of a person as the proprietor of land or an interest in land does not confer on that person a right to minerals not already vested in that person.”</strong></p> <p>As was stated with authority by Atuguba, JSC in the case of <strong>Republic v High Court (Fast Track Division); Ex parte National Lottery Authority (Ghana Lotto Operators Association &amp; Others Interested Parties) [2009] SCGLR 390</strong> at page 397;</p> <p><em>“ It is communis opinion among lawyers that the courts are servants of the legislature. Consequently, any act of a court that is contrary to a statute such as Act 722, s 58 (1)-(3) is, unless otherwise expressly or impliedly provided, a nullity…..Consequently, the courts have been bound to hold that the courts’ own law, the common law as defined in article 11(2) of the 1992 Constitution, must give way to statute.”</em></p> <p>So, to the extent that defendants did not prove any of the exceptions above and mistake or fraud, the attacks on the plaintiff’s certificate ought to have failed. The 1st defendant in his statement of case argued at paragraphs 30 to 35 thereof on an allegation of fraud against the grantors of plaintiff in relation to the signature of the Gborbu Wulomo, one of the head grantors, on their lease which is inserted in plaintiff’s Land Certificate. But that issue about the alleged forgery of the signature of the Gborbu Wulomo was investigated by the police and plaintiffs grantors were prosecuted before the Greater Accra Regional Tribunal sitting at Tema which, by its judgment dated 13th February, 2002 tendered as Exhibit ‘J’ in the trial court, acquitted them of the charges. In our opinion, that rested that charge. Besides, that case was made in 2000 whereas the plaintiff’s certificate is dated 22nd April, 1999 and there is no evidence that he became aware of even the allegation before the acquisition.</p> <p>In the conclusion of his statement of case 1st defendant, submitted that the overwhelming evidence on record supported the judgment of the Court of Appeal. We disagree with that submission and have already in this opinion explained the reasons for our position that the judgment of the Court of Appeal is not supported by the evidence on record. In the result, we find merit in the appeal and accordingly allow same. We set aside the judgment of the Court of Appeal dated 4th June, 2015 and restore the judgment of the High Court dated 4th July, 2011 with a slight modification. The trial judge awarded plaintiffs general damages of GHC50,000.00 at the time taking into consideration the length of time they had been prevented from developing their land together with their foreign partners. Today is about eight years on since the High Court gave its judgment and taking that into account we award the plaintiffs general damages of GHC80,000.00.</p> <p><em>             <strong>G. PWAMANG </strong></em></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p><a name="_Hlk536045335" id="_Hlk536045335"><strong> BAFFOE-BONNIE, JSC:-</strong></a></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p><strong>                                                                 </strong></p> <p><strong>                                                                     P. BAFFOE-BONNIE</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p><strong>GBADEGBE, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p><strong>                                                                 </strong></p> <p><strong>                                                                       N. S. GBADEGBE</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>DORDZIE (MRS.), JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p><strong>                                                                 </strong></p> <p><strong>A.   </strong><strong>M. A. DORDZIE (MRS.)</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p><strong>KOTEY, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p><strong>                                                                 </strong></p> <p><strong>                 PROF. N. A. KOTEY</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p> </p> <p><strong>COUNSEL</strong></p> <p>KWABENA ANKAMAH OFEI-BADU FOR THE PLAINTIFS/RESPONDENTS/APPELLANTS.</p> <p>OSAFO BUABENG FOR THE 1ST DEFENDANT/APPELLANT/RESPONDENT.</p> <p><em>FOSU GYEABOUR FOR THE 3RD DEFENDANT/APPELLANT/RESPONDENT.</em></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="https://old.ghalii.org/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ghalii.org%2Fgh%2Fjudgment%2FSupreme%2520Court%2F2019%2F16%2FMRS%2520AGNES%2520AHADZI%2520%2526%2520ANOR.%2520VRS%2520BOYE%2520SOWAH%2520SUBT.%2520BY%2520SAMUEL%2520NORTEY%2520%2526%25202%2520ORS..pdf" data-src="https://old.ghalii.org/gh/judgment/Supreme%20Court/2019/16/MRS%20AGNES%20AHADZI%20%26%20ANOR.%20VRS%20BOYE%20SOWAH%20SUBT.%20BY%20SAMUEL%20NORTEY%20%26%202%20ORS..pdf">https://old.ghalii.org/gh/judgment/Supreme%20Court/2019/16/MRS%20AGNES%20AHADZI%20%26%20ANOR.%20VRS%20BOYE%20SOWAH%20SUBT.%20BY%20SAMUEL%20NORTEY%20%26%202%20ORS..pdf</iframe> </div></div></div> Thu, 11 Apr 2019 15:41:14 +0000 eric 1205 at https://old.ghalii.org https://old.ghalii.org/gh/judgment/supreme-court/2019/16#comments Awabego v Akubayela and Another (J4/6/2016) [2016] GHASC 23 (23 November 2016); https://old.ghalii.org/gh/judgment/supreme-court/2016/23 <div class="field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><div class="field-label">Flynote:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/supervisory-jurisdiction" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Supervisory Jurisdiction</a></div><div class="field-item odd"><a href="/tags/declaratory-relief" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Declaratory Relief</a></div><div class="field-item even"><a href="/tags/african-customary-law-and-rights-indigenous-peoples" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">African customary law and rights of indigenous peoples</a></div><div class="field-item odd"><a href="/tags/land-use" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Land use</a></div><div class="field-item even"><a href="/tags/el" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">EL</a></div></div></div><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>This was a dispute over land ownership and related claims to reversionary interest compensation. Both parties sought orders declaring that they were allodial owners of the land in dispute according to tradition and customs, and that they were entitled to receive the reversionary interest compensation. </p> <p>The court determined whether the allodial title to the land in dispute vested in individual families or in the appellant as the Tindana for and on behalf of the whole community. </p> <p>The court held that the best way of resolving conflicts arising from traditional evidence concerning ownership of land is to test it against recent acts to see which traditional version is supported. The court found that it is widely accepted, among legal writers, scholars and practitioners, that the Tindana is the landlord or landowner. Additionally, the report of the committee to investigate a land dispute between the Tindonsobligo and the Kalbeo people explicitly stated that the Tindana was the allodial owner of land, while the people were usufucts (settler/farmers).</p> <p>The court noted that the defendants Tindana status was not in dispute, and concluded that the appellant was the the allodial owner of Kalbeo land and held it in in trust for community.</p> </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p class="rtecenter"> </p> <p class="rtecenter"><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p class="rtecenter"><strong>IN THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>ACCRA  </strong></p> <p class="rtecenter"><strong><u>AD-2016</u></strong></p> <p><strong>                                               </strong></p> <p class="rteright"><strong><u>CIVIL APPEAL</u></strong><strong><u> NO: J4/6/2016</u></strong></p> <p class="rteright"><strong>23<sup>RD</sup>  NOVEMBER, 2016</strong></p> <p> </p> <p><strong>YAKUBU  AWABEGO </strong>                              <strong> -    PLAINTIFF/APPELLANT/APPELLANT</strong></p> <p>HEAD OF FAMILY (SUING ON BEHALF OF HIMSELF AND AWURE FAMILY OF KALBEO)</p> <p><strong>VRS</strong></p> <p><strong>TINDANA  AGONGO  AKUBAYELA     -RESPONDENT/ RESPONDENT</strong></p> <p>TINDANA OF TINDONSOBLIGO<strong>            RESPONDENT      </strong></p> <hr /> <p class="rtecenter"><strong>JUDGMENT         </strong></p> <hr /> <p><strong><u>ATUGUBA, JSC</u></strong>                                                      </p> <p>The Plaintiff/Respondent/Respondent sued the Defendant/Appellant/Appellant claiming the following reliefs:</p> <p class="rteindent1"><strong><em>”1.      Two hundred and six million, thirty-thousand Cedis being freeholders Reversionary Interest Compensation (in respect of a total of 9.72 acres leased plots of land which is part of a larger plot of land measuring 61.924 acres belonging to the Awure Family of Bolgatanga in the Bolgatanga Municipal Assembly and situate at Tamale Road Industrial Area, Bolgatanga and delineated as a plan of land for Bulk Oil Storage Transportation Limited (BOST) shewn edged pink certified by the Regional Surveyor, Upper East region dated 12<sup>th</sup> day of August, 2003, acquired per Executive Instrument E.I. 10 of  2004 paid to the Defendant on or about 5<sup>th</sup> day of January 2007 per Ghana Commercial Bank Cheque No. 0340380 dated 5<sup>th</sup> day of January, 2007 by Land Valuation Board, attached hereto as schedule II).</em></strong></p> <p class="rteindent1"><strong><em>2.        In the alternative, Eighty-Two Million, four Hundred and Twelve thousand Cedis (¢82,412,000.00) being the share of the Awure Family i.e. forty percent (40%) of Two hundred and six million, thirty thousand cedis (¢206,030,000.00) Freeholders Reversionary Interest Compensation in respect of a total of 9.72 acres leased plots of land belonging to the Awure family and situated in Bolgatanga Municipality affected by the acquisition per Executive Instrument E.I. 10 of 2004 paid to the defendant on or about 5<sup>th</sup> day of January, 2007 by Land valuation Board, Bolgatanga under a Memorandum of Understanding (MOU) executed for and on behalf of the Awure Family and the Tindana of Tindonsobligo by representatives of the Plaintiff and the Defendant respectively and dated 7<sup>th</sup> November, 2006 and witnessed by several people.  </em></strong></p> <p class="rteindent1"><strong><em>3.        Declaration that the Awure Family is the only party entitled to claim compensation under Executive Instrument E.I. 10 of 2004.</em></strong></p> <p class="rteindent1"><strong><em>4.        That further proceedings will be stayed if within the time limited for appearance the Defendant pay that amount claimed to the Plaintiff or their lawyer”.</em></strong></p> <p>The Defendant also counterclaimed against the Plaintiff with respect to the same subject matter for:</p> <p class="rteindent1"><strong><em>“1.     Declaration that Defendant in his capacity as the Tindana of Tindonsobligo is the allodial owner of all Tindonsobligo lands including the land declared vested in the state by E.I. 10 of 2004 particularly described by schedule ‘C’ to E. I. 10 and is the proper person to be paid compensation.</em></strong></p> <p class="rteindent1"><strong><em>2.       Declaration that an amount of ¢206,030,000.00 freeholders Reversionary Interest Compensation paid to the Tindana of Tindonsobligo in his capacity as the Allodial Owner (the Ghanaian equivalent of a freeholder of land under larger vested land in the state pursuant to E.I. 10 is not the actual compensation payable for the subject site and that the  Tindana as allodial owner is the proper person to receive such money.</em></strong></p> <p class="rteindent1"><strong><em>3.       Declaration that the Memorandum of Understanding and its terms assented to by representatives of Plaintiff and Defendant on the 29<sup>th</sup> March, 2006 is not an enforceable document and the Defendant is not bound by its terms regarding how much compensation to pay to whom”.</em></strong></p> <p>Or in the alternative;</p> <p class="rteindent1"><strong><em>“         Declaration that even if the said document is enforceable, defendant has the constitutional right to resile from it and to allow the High Court to determine who has a right to compensation and the amount of compensation payable on the basis of evidence adduced at the trial.</em></strong></p> <p class="rteindent1"><strong><em>4.       Declaration that the act of executing the leases of plots Nos. 60 and 63A Tindonsonbligo Light Industrial Area by the Head of Awure family when the land in question is Tindonsobligo land and the misrepresentation by the family of who has the right to grant such land made to the Lands Commission to wrongly give concurrence to the said leases without the knowledge of the Tindana of Tindonsobligo is an act of fraud and which fraud has vitiated the leases as being null and void.</em></strong></p> <p class="rteindent1"><strong><em>5.       An order that the Tindana of Tindonsobligo is the person to be paid compensation for and on behalf of the Tindonsobligo community in respect of land vested in the state by E.I.  10 of 2004</em></strong></p> <p class="rteindent1"><strong><em>6.       An order that the leases covering plots No. 60, 63 and 63A Tindonsobligo Light Industrial Area be expunged from the Register as being null and void.</em></strong></p> <p class="rteindent1"><strong><em>7.       An order that compensation payable to Biocal Enterprise a lesee of two of the fraudulent leases executed by the head of family of Awure family and which compensation has not yet been paid be ordered paid to Defendant”.</em></strong></p> <p>The crux of this appeal is whether the allodial title to lands in Kalbeo in the Bolgatanga Municipal area is vested in individual families or in the Defendant/Appellant/Appellant as the Tindana thereof for and on behalf of the whole community of those lands. The parties are ad idem as to the fact that the Appellant (for short) is the Tindana of Tindonsobligo and also performs the role of Tindana for Kalbeo, where the disputed land is situate.</p> <p>However whereas the appellant contends that as Tindana thereof, the allodial title  to lands in Kalbeo vests in him in trust for the whole community over which he is the Tindana the Respondent’s case is that the appellant performs that role in respect of Kalbeo lands by reason of some oral treaty between the respondent’s ancestors, as founders of Kalbeo and the appellant’s ancestors purely because of the expertise of the latter with regard to the spiritual exercise of sacrificing to shrines for spiritual blessings and protection.</p> <p><strong><u>Recent Acts</u></strong></p> <p>It is a trite principle of Land Law in this country that the best way of resolving conflicts arising from traditional evidence concerning ownership of land is to test it against recent acts to see which traditional version is thereby supported.  <em>See Adjeibi-Kojo v. Bonsie (1957)3 WALR 257, Adjei v Acquah (1991)1 GLR 13, S.C. </em>and <em>Nii Ago Sai v. Nii Kpobi Tetteh Tsuru </em>III [2010] SCGLR 762.</p> <p>In this case there is a plethora of statutory declarations and leases evidencing the allodial title of the appellant as Tindana of Tindonsobligo and concurred in or witnessed by persons including the heads or representatives of the respondent’s family appearing at inter alia, pages 590, 619, 627 – 635, 662 – 668, 669 – 691 of the Record of Proceedings. As pointed out by counsel for the appellant in the appellant’s statement of case dated 15/1/2016:</p> <p class="rteindent1">“In their Consolidated Amended Reply and Reply in Amended Statement of Defence, which appears at pages 126-132 of the record of Proceedings, the Plaintiff/Respondent/Respondent stated as follows:</p> <p class="rteindent2">“The Plaintiff further says that the office of status or role of the Defendant is that of a Tindana and the defendant resides at Tindonsobligo, thus the Defendant is referred to as Tindana of Tindonsobligo but his ritual jurisdiction extends beyond Tindonsobligo to include Kalbeo.  The Plaintiff further says that as Tindana the Defendant’s assent is customarily required in all important social and economic transactions within the defendant’s ritual jurisdiction and the Plaintiff further says that he the Plaintiff and the Awure Family had always sought the Defendant’s customary ritual assent in their social and economic transactions <u>including the alienation of their ancestral land to organizations and to individuals for development.”  </u>[emphasis added].</p> <p class="rteindent1">“The Plaintiff further says that the Plaintiff and the Awure Family will continue to follow this hallowed cultural practice bequeathed to them by their ancestors.  The Plaintiff further says that they have always been honest and transparent with the Lands commission, Bolgatanga and or Land Valuation Board in all their land transactions”.</p> <p><strong><u>Defendant’s Explanations</u></strong></p> <p>In the respondent’s statement of case dated 8/2/2016 he contends thus:</p> <p class="rteindent1">“my Lords, the evidence is that most leases executed in the Bolgatanga Municipality are not prepared by professionals such as lawyers.  In most cases applicants take leases already in existence modify them and submit them to Lands commission for processing.  Also, the Tindana was made a lessor in the leases by the Lands Commission Bolgatanga for the Convenience of the Land Commission.  The Commission did not like the idea of having to deal with individual heads of families and preferred dealing with the Tindana on behalf of the various families”.</p> <p>As regards this plea, one wonders how when the respondent’s family’s rights are affected practically, on the ground, by the operation of a wrongfully formulated document, they cannot bring an action such as they have done in this case for the necessary redress.  This plea is therefore unconvincing.  The case of <em>In re Ashalley Botwe Lands </em>(2003 – 2004)1 SCGLR 420, holding 7 regarding the self serving nature of statutory declarations does not extend to situations in which the injuriously affected person  is a  party to the document even if as a witness.  In any case the aforequoted excerpts from the  Plaintiff/Appellant’s Reply to the Defendant/Respondent’s amended Statement of Defence are deeply rooted in custom and tradition and are manifestly admissions  against the Plaintiff’s interests.</p> <p>The documents in question are therefore acts and declarations against the respondent’s interests and are consequently of high probative value in favour of the appellant’s case</p> <p><strong><u>Text Writers </u></strong></p> <p>The appellant’s contentions regarding his status as the allodial owner of the lands within his Tindanaship are supported by leading and eminent text writers.  Some of these are refereed to in the appellant’s statement of case as follows:</p> <p class="rteindent1">“R.J.H. Pogucki (<strong>Assistant commissioner of Lands)</strong> whose work appears on page 557-558 of the record of proceedings stated that; “In the minutes of proceeding of such courts, such as for example, the Nankani – Kassena Federation Court and the Frafra Federation Court, one always finds the term “Tindana” translated into English as meaning “landlord” or “landowner” <strong>this role of a Tindana is not put in doubt in these courts.”</strong></p> <p>Report on pilot phase of Ascertainment and Codification of Customary Law on Land and Family in Ghana (ACLP), Vol. III, a joint research by <strong>the National House of chiefs and the Law Reform Com mission </strong> published in March 2011.  At page 551 of the Record of Proceedings under the heading <strong>“Hierarchy Of Land Tenure Interests”, </strong>it was stated thus: “<strong>Állodial interest: </strong>based on the view expressed by various respondents during the customary land law research and subsequent enquiries after the validation workshop, the nature of land ownership in the Bolgatanga Traditional Area <strong>is influenced by </strong>the nature of settlement in the area.  The basic principle of settlement as land ownership according to the respondents is  that ‘when a person (and his family) was the first person to occupy and demarcate an expanse of land, that person who is also the head of the family becomes the custodian of the land (Tingadanaa or Tindaana which literally means landowner) including ownership of the trees, water bodies and other resources on it.”</p> <p>At page 553 of the Record of Proceedings captain R. S. Rattary stated:</p> <p class="rteindent1">“The former continued to assert his original title to be custodian and trustee of the land of his people, a claim which few, even of the most arrogant secular chief, ever dared to dispute, even at the present day.  the people belongs to me, the land belongs to the Tindana”, is a statement I have repeatedly heard made.  The new foreign chief and the old tribal Tindana thus come to work hand in hand”.</p> <p>At page 554, Capt. R. S. Rattary further stated that “the Tindana in all his religious and spiritual activities was the exact prototype of an Ashanti chief in his capacity as <em>Asase wura</em> (owner of land), and custodian of the ancestral spirits of the land”.</p> <p>Footnote one at page 553 states:</p> <p class="rteindent1">“An exception to this was the invasion of what is now Eastern Dagomba by the Mamprose chief, Na Nyagea, when many tendana were put to death”.</p> <p>We can again cite the work of R.J.H. Pogucki, <strong>Gold Coast Land Tenure, vol. 1, A Survey of Land Tenure in Customary Law of the Protectorate of the Northern Territories</strong>, published in 1955.  The relevant extract appears at pages 555 to 558 of the Record of Proceedings. </p> <p>In paragraph 22, Pogucki’s work (page 556 of the Record of Proceedings), he succinctly states as follows:-</p> <p class="rteindent1">22)  “All over the Northern Territories groups, which own allodial rights on land are usually represented in their execution by a special official, the Tindana.  This official is always a descendant of the first settler.”</p> <p><strong>The position stated by Pogucki and Rattary is affirmed by the works of renowned scholars, Professors George Benneh and Raymond Benning, titled, Technology Should Seek tradition-studies on traditional Land tenure and Small Holder Farming System in Ghana.  </strong>Proceedings of which are reproduced at pages 559-562 of the record of Proceedings.  Extract found at page 561 of the record of Proceedings is very pertinent.  It states thus:</p> <p>“The most common office in these ‘segmentary societies’ is the representation of the earth god, <em>Tendaana </em> who is usually a descendant of the first settler.  He is regarded as the custodian of the land.  Each <em>Tendaana </em> has his own area within which he sacrifices to each god shrine and exercises his spiritual programmes.  Where the area  is very large, it may be divided into smaller units over which subordinate <em>tendaanas </em> may be appointed.</p> <p>The duties of the <em>Tendaana </em> are generally the same in the segmentary societies.  Apart from his religious functions, which are sacrificing to the earth god, he allocated unclaimed land to other people who came to settle on his territory.”</p> <p>The writers further stated at page 560 thus:</p> <p class="rteindent1">“The associate states in Northern Ghana are <strong>Tellensi, Frafra, Namnam, Kusasi, Builsa, Bimoba </strong> and parts of <strong>konkomba. </strong>Chieftaincy  was introduced to these areas by the new ruling class.  Since the ‘strangers’ were normally in the minority and usually relied on the power and prestige of the ruler of the distant parent state to maintain their positions, no changes were introduced by them to upset the old social order.  Ownership of land is still vested in the original custodian.  As a Kusase informant pointed out chiefs now own the people but Tendana (Tendaana) still own the land”.</p> <p>My Lords, at page 562, the writer stated that:</p> <p class="rteindent1">“Although the British administration appointed chiefs for these societies and attempted to create large political units, there has always been a clear distinction between the duties of a chief and those of a Tendaana.  The traditional rights of the latter over land have by and large remained inspite of the greater prestige which the former enjoys as a spokesman of his people to the government”.</p> <p>All this is amply supported by the most direct and thoroughly researched article of E.N.A. Kotey, then a Senior Lecturer of the Faculty of Law, University of Ghana Legon, in (1993 -95)19 U.G.L.J. 102, titled:</p> <p class="rteindent1">“LAND AND TREE TENURE AND RURAL DEVELOPMENT FORESTRY   </p> <p> IN NORTHERN GHANA.”  At p. 108 the Learned author stated thus:</p> <p class="rteindent1">“In the Northern Region, the tenure systems of the politically more centralized Dagbon, Mamprusi, Nanumba and Gonja recognise that the allodial title to land (the highest and ultimate title to land in the customary system of landholding traditionally vested in a community and managed on its behalf by the traditional authority) is vested in the various skins.  The allodial title to land is in theory vested in the indigenous communities as represented by their paramount skins, like the Ya Na (the Feudal King of the Dagomba, now the paramount chief) or the Nayeri (the Paramount chief of Mamprusi).  Practical management is, however, done by the various sub-skins.  Thus Diare or Savelugu (Dagomba towns) land is managed by the Diare Na or Savelugu Na respectively and not the Ya Na.  Gambaga, Walewale and Langbinsi lands are managed by the  respective Naba (chiefs).</p> <p>Though these politically more centralized ethnic groups have tindemba (earth priests), they do not manage the land on behalf of their communities but minister unto and perform rituals to ensure the productivity of the land.”</p> <p>By contrast he forcefully states at 112 - 115 as follows:</p> <p>“In the Upper East and Upper West Regions, the politically less centralized Lobi-Dagarti, Sissala, Kussasi, Tallensi and Builsa have no skin ownership of land.  <em>The allodial title to land is vested in the various indigenous communities as represented by the various Tindemba.</em>  This finding is  contrary to the view of Ollennu that the allodial title to land in the  Upper East and Upper West regions is held by the skins.  Ollennu relies  for this view on <em>Azantilow, Sandemanab. V. Nayeri ,  </em> <em>Mamprusina &amp; 3 others</em>.  It must however be emphasized that the issue which confronted the court in Azantilow, as Ollennu himself acknowledges, was whether the Sandemanab (Paramount Chief of the Builsa) and  the Nayeri (Paramount Chief of Mamprusi) were the  proper persons to sue or be sued in respect of their peoples’ land.  The case is therefore no authority for the  proposition that in all the ethnic groups of the Upper East and Upper West Regions the chief is the trustee for a community’s land.,  <em>in Azantilow v. Nayeri, </em> the Sandemanab sued on behalf of the Builsa people for a declaration of  title to certain lands occupied by the second, third and fourth defendant chiefs and their people.</p> <p>The defendants opposed the claim on  the ground that the land belonged to the Mamprusi people, whose paramount chief  was the first defendant.  The plaintiff had claimed that the boundary of his land was the White Volta and that the 2<sup>nd</sup>, 3<sup>rd</sup> and 4<sup>th</sup> defendants and their peoples who were denying it were in fact related to the Builsa.  The court held that:</p> <p class="rteindent1">“the plaintiff is a person capable of suing in his capacity as tribal head and that the defendants are the proper persons to be used.”</p> <p>It was essentially therefore a jurisdictional matter – a boundary dispute between two ethnic groups, Builsa and Mamprusi.  There was no issue as to the position inter se a Builsa chief and Builsa Tindana.  Ollennu gives the impression that the latter was indeed the issue by stating:</p> <p class="rteindent1">“The question arose as to whether the plaintiff and the defendant, occupants of skins, were the proper persons to prosecute and defend the titles of their respective tribes to land and whether the proper persons to sue and to defend were not the Tindana of Builsa and the Tindana of Mamprusi.”</p> <p>No such issue is discernible from the report.  Indeed such an  issue is incapable of arising as there is in fact no institution like the Tindana of the Builsa or Mamprusi (a Head or Paramount Tindana), there being many tindemba among the Mamprusi and Builsa with no overall superior.  The Court in summarising the evidence, but  before making a decision, stated:</p> <p class="rteindent1">“The evidence of the plaintiff and the first defendant both showed that each could hold a title to land in his capacity as tribal head.  On the defendants’ side support from this came from the first witness who said that as a sub chief he held land under the Head chief of the Mamprusi people, the Nayeri, who is the first defendant.  Further support came from the defendants’ second and third witnesses who were<br /> Tindanena.  Both made it <em>clear in their evidence-in-chief that their position is one of fetish priest and not one which carries title to land with it, although elsewhere in the Northern Territories this may be the case.”</em></p> <p>All that this shows is that <em>as regards the Mamprusi there was evidence by some tindemba, in support of their chiefs, that they did not hold title to land on behalf of their communities and that this was vested in their chiefs.</em>  This is consistent with our finding that among the Mamprusi, who have a state system, it is the chief who holds the land on behalf of the community.  <em>There is nothing in the Report that any such support was offered by the Tindemba from the Builsa. </em> As Woodman indicates:</p> <p class="rteindent1">“The court there [in Azantilow] spoke of chiefs having title to sue but the evidence merely showed that the Tindana claimed no title themselves.  Otherwise the chiefs’ right to sue was simply taken for granted.”</p> <p><em>The Builsa, it has been stated, were a non state society.  Chiefs may have been introduced to some of the Builsa at a later time in their history.</em>  The colonial policy of indirect rule however encouraged  the practice of chieftaincy and raised the Sandemanab to the status of a head chief.  The present Sandemanab  (who has been on the skin for a very long time and was the plaintiff in <em>Azantilow </em>v.<em> Nayeri </em>has judiciously asserted his authority over the whole of the Builsa.  <em>His claim to allodial ownership as opposed to sovereignty (in a jurisdictional non proprietary sense) of all Builsa land however has no basis in the indigenous law.</em></p> <p class="rteindent1"><em>“In the Upper East and Upper West regions therefore the tindemba lineage and family headmen are the key players in land matters.  Generally, the tindemba appear to have control over the land, particularly vacant communal land.  Most agricultural and town lands are, however, in the effective control of lineage and family headmen.</em>  Individual rights in appropriated land are quite pronounced and are inheritable and secure.” (e.s.)</p> <p>All this is further confirmed by Dr. L. K. Agbosu a former Lecturer in Law, Ghana School of law, in his article “Land Administration in Northern Ghana”, in (1980)12 R.G.L. 104 at 10.  In reaching this conclusion we are not unmindful of the caution sounded by this court with regard to text writers’ opinions where factual matters are disputed by the parties in  <em>Hilodjie &amp;  another v. George  [2005 – 2006] SCGLR 974. </em>But where such text writers are distinguished authorities and are consistent on the matters which happen to favour a party’s case, the same can be relied on by a court, see <em>Ameoda v. Pordier</em> (1967)GLR 479 C.A. Most direct  is as stated in the appellant’s aforementioned statement of case thus:</p> <p class="rteindent1">“the respective status of the parties was further confirmed by the <em>Report of the Committee to Investigate a Land Dispute between the Tindonsobligo and the Kalbeo people.  </em>The Report appears at page 1459 of the record of Proceedings.  The following extract from the findings is instructive:</p> <p class="rteindent1">1.    That the Tindana of Tindonsobligo is the allodial owner (original/founder) of the land in dispute among other lands in the area..</p> <p class="rteindent1">2.    That  the people of Kalbeo are usufructs (settler/farmers) who were given land by the  Tindonsobligo Tindana hundreds of years ago.</p> <p class="rteindent1">3.    That the Kalbeo people recognize the Tindana of Tindonsobligo as the allodial owner and have actually co-operated with him in the recent past.</p> <p class="rteindent1">4.     That the Tindana of Tindonsobligo recognizes the title of the Kalbeo people as usufructs on the land in dispute and have co-operated with them in the recent past.</p> <p class="rteindent1">5.      That some owners from Kalbeo jointly executed leases with the Tindana of Tindonsobligo in the recent past.</p> <p class="rteindent1">6.      That both parties have shared compensation (money) paid by SSNIT and BOST thereby indicating their mutual recognition of each other’s separate title.”</p> <p>My Lords, it would interest you to know that the Committee <strong>comprised</strong> of:</p> <p class="rteindent1">1.  District Police Crime Officer, Mr. Patrick</p> <p class="rteindent1">2.  Lawyer Robert Tatar, Convener of the Justice and Security Subcommittee of the Assembly</p> <p class="rteindent1">3.  Nelson Mba, Public Relation  Officer  of the Assembly (Secretary)</p> <p class="rteindent1">4.  The Regional Lands Officer, Mr. Adiaba Stanislaus (Member)</p> <p class="rteindent1">5.  The Town and Country Planning Officer, Mr. Sulley Shittu (Member)</p> <p class="rteindent1">6.  The district commander of the Bureau of National Investigations (BNI), Raymond Abu (Mamber) and</p> <p class="rteindent1">7.  Regional Surveyor, Mr. L. Q. Torsu (Member).</p> <p>There is therefore, no doubt about the respective positions of the parties.”</p> <p><strong><u>Conclusion</u></strong></p> <p>From all the foregoing it is clear that since the respondent admits that the appellant is the Tindanana of Tindonsobligo and performs the functions of Tindana in respect of Kalbeo Lands also which are claimed by the respondent family as theirs, it follows that since a Tindana holds the land of which he is the Tindana in trust for the community of which he is the Tindana, the appellant is the Tindana of Kalbeo also and consequently the allodial owner of Kalbeo land in trust for them.    It follows also that the respondent family can only have usufructuary  title over such of  Kalbeo lands as have been reduced into their possession as customary  free holders thereof, <em>see Saaka v. Dahali</em> (1984-86)2 GLR 774 C.A.    If the Tindana witnesses the payment of compensation in respect of a usufructuary interest, it does not prejudice his allodial title. The reliance by the High Court and  the Court of Appeal on a passage from  History for Senior Secondary School by J. K. Fynn and R,. Addo Fening, first published in 1991 and reprinted in 1993 by the Ministry of Education, Ch. 13 at page 492 thereof does not derogate from the status of a Tindana as owner in the sense of being the custodian of communal land for and on behalf of the community.  That passage is as follows:</p> <p class="rteindent1"><em>“These indigenous peoples did not have states or kingdoms and no central administration to make laws and enforce them.  Such powers rested with the Tindana and enforce them.  Such powers rested with the Tindana or `owner of the land’   T<u>he Tindana, however, never actually owned the land; he was only its custodian. </u>His duties were to lead his people during the annual festivities, to officiate at sacrifices to the local shrine and to pray on behalf of his people in times of danger or disaster.  For this reason, the powers of the Tindana were extensive even though they were based upon respect for punishment.  Tindanas also became quite rich because all lost articles, goods and animals that were found became theirs unless they were claimed by their owners.  They also received the hind legs of animals killed by hunters”(emphasis mine).”</em></p> <p>We therefore allow the appeal to the extent hereafter indicated and set aside the judgments of the High Court and Court of Appeal, though concurrent ones.</p> <p>We dismiss the plaintiff’s action in so far as it is inconsistent with the memorandum of understanding between the parties herein relating to the compensation in respect of the disputed land and allow the counterclaim of the appellant except in so far as it is inconsistent with the said memorandum of understanding.  For the avoidance of doubt we grant relief (1) of the Defendant/Appellant’s counterclaim and dismiss reliefs (2) and (3) thereof and we further state that the parties remain bound by their special Memorandum of Understanding relating to the compensation in respect of the disputed land. </p> <p> </p> <p class="rtecenter"><strong>(SGD)         W.   A.   ATUGUBA</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"> </p> <p class="rtecenter"><strong>(SGD)         P.   BAFFOE- BONNIE</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"> </p> <p class="rtecenter"><strong>(SGD)        A.   A.  BENIN</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"> </p> <p class="rtecenter"><strong>(SGD)</strong><strong>        Y.   APPAU</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"> </p> <p class="rtecenter"><strong>(SGD)         G. PWAMANG</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p> </p> <p><strong><u>COUNSEL:</u></strong></p> <p><strong>KWAME GYAN WITH RAPHAEL AGYAPONG  FOR  THE DEFENDANT   /APPELLANT/APPELLANT.</strong></p> <p><strong>EMILIO KANOMUOH MUSA FOR PLAINTIFF/RESPONDENT /RESPONDENT.</strong></p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="https://old.ghalii.org/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ghalii.org%2Fgh%2Fjudgment%2FSupreme%2520Court%2F2016%2F10%2FYAKUBU%2520AWBEGO%2520%2520VRS.%2520TINDANA%2520%2520AGONGO%2520AKUBAYELA.pdf" data-src="https://old.ghalii.org/gh/judgment/Supreme%20Court/2016/10/YAKUBU%20AWBEGO%20%20VRS.%20TINDANA%20%20AGONGO%20AKUBAYELA.pdf">https://old.ghalii.org/gh/judgment/Supreme%20Court/2016/10/YAKUBU%20AWBEGO%20%20VRS.%20TINDANA%20%20AGONGO%20AKUBAYELA.pdf</iframe> </div></div></div> Tue, 07 Nov 2017 10:30:49 +0000 admghana 195 at https://old.ghalii.org https://old.ghalii.org/gh/judgment/supreme-court/2016/23#comments Republic v High Court Accra and Others (Ruling) (J5/34/2015) [2016] GHASC 6 (24 February 2016); https://old.ghalii.org/gh/judgment/supreme-court/2016/6 <div class="field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><div class="field-label">Flynote:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></div><div class="field-item odd"><a href="/tags/have-his-cause-heard-fair-trial" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Have his cause heard (fair trial)</a></div><div class="field-item even"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></div><div class="field-item odd"><a href="/tags/jurisdiction" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Jurisdiction</a></div><div class="field-item even"><a href="/tags/supervisory-jurisdiction" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Supervisory Jurisdiction</a></div><div class="field-item odd"><a href="/tags/writ-certiorari" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Writ of Certiorari</a></div></div></div><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The High Court gave a summary judgment in favour of a party relating to a declaration of title to a house, payment of accumulated rent and an order of ejection. The Court of Appeal overturned the judgment but invoked supervisory jurisdiction to make an order compelling issuing of land title to the interested party.</p> <p>The court held that the interested party could not apply for the supervisory jurisdiction for a judgment that was overturned – and this was impermissible. A party is not permitted to undermine a decision of an appellate court overturning a decision of the trial court to apply for supervisory jurisdiction when the judgment to be supervised has been set aside. For these reasons the application to set aside the supervisory orders was set aside.</p> </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p class="rtecenter"> </p> <p class="rtecenter"><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p class="rtecenter"><strong>IN THE SUPREME COURT OF JUSTICE</strong></p> <div> <p class="rtecenter"><strong>ACCRA – AD. 2016</strong></p> </div> <p> </p> <p class="rteright"><strong><u>CIVIL MOTION NO.J5/34/2015</u></strong></p> <p class="rteright"><strong>24<sup>TH</sup>  FEBRUARY </strong> <strong>2016</strong></p> <p> </p> <p><strong>THE REPUBLIC</strong></p> <p><strong>VRS</strong></p> <p><strong> THE HIGH COURT ACCRA    -  </strong>RESPONDENT</p> <p><strong> EX PARTE: THE CHARGE D’AFFAIRES               -  </strong>APPLICANT</p> <p><strong>BULGARIAN EMBASSY, ACCRA</strong></p> <p><strong>1. THE  LAND  TITTLE  REGISTRY   - </strong>INTERESTED  PARTIES</p> <p><strong>2. THE  LAND  COMMISSION</strong></p> <p><strong>3. THE MINISTRY  OF  FOREIGN  AFFAIRS.</strong></p> <p><strong>4. THE  ATTORNEY  GENERAL</strong></p> <p><strong>5. JOJO  HAGAN  </strong></p> <p> (ADMINISTRATOR OF THE ESTATE OF THEOPHILUS  K.  LEIGHTON<strong>)</strong></p> <p> </p> <hr /> <p class="rtecenter"><strong>RULING</strong></p> <hr /> <p><strong><u>PWAMANG JSC</u></strong><strong><u>.</u></strong></p> <p>This is an application invoking our supervisory jurisdiction pursuant to Article 132 of the 1992 Constitution praying for an order of certiorari to bring into this court the orders made on 1<sup>st</sup> September, 2014 by the High Court, Accra in <strong>Suit No. BMISC 995/2014</strong> for the purpose of being quashed.</p> <p>The brief facts are that by a writ of summons in <strong>Suit No. BC 285/07</strong> dated 28<sup>th</sup> March, 2007, one Theophilus Leighton (deceased) instituted an action against the applicant herein in the High Court, Accra claiming 21 reliefs, key among which are the following:</p> <p class="rteindent1">(i)    Declaration of title to House No. 2 East Cantonments Residential Area, Accra which the defendant has been occupying as a tenant since 1987.</p> <p class="rteindent1">(ii)    Payment of accumulated rent arrears of $598,252.17 by the Defendant for its occupation of the said House No. 2, East Cantonment Residential Area, Accra.</p> <p class="rteindent1">(iii)    An order of ejection and recovery of possession of House No. 2, East Cantonment Residential Area, Accra.</p> <p>On 21<sup>st</sup> October, 2009, the High Court, Accra presided over by His Lordship Justice Anthony K. Abada gave summary judgment in the said <strong>Suit No. 285/07</strong> in favour of the plaintiff, who is now being represented by his successor the 5<sup>th</sup> interested party to this present application. </p> <p>The judgment of Abada J. granted the reliefs as endorsed on the writ of summons. The said summary judgment was however overturned by the Court of Appeal by judgment dated 21<sup>st</sup> July, 2011.  The grounds on which the Court of Appeal overturned the judgment were that the premises in issue in the suit before the High Court were being used as a diplomatic mission so the courts of Ghana have no jurisdiction to entertain a suit in respect of the premises. Another ground was that the writ of summons had expired before it was served on the defendant so the proceedings based upon it were all a nullity.</p> <p>The judgment of the Court of Appeal notwithstanding, the 5<sup>th</sup> interested party herein Mr. Jojo Hagan, relying on the judgment of Abada J, filed a motion in the High Court, Accra, on 21<sup>st</sup> July, 2014 as <strong>Suit No. BMISC 995/2014</strong> invoking the supervisory jurisdiction of the High Court for orders of mandamus against the Land Title Registry, the Lands Commission and the Ministry of Foreign Affairs. He prayed the High Court in exercise of its supervisory jurisdiction, to compel the issuance of a Land Title Certificate to 5<sup>th</sup> interested party, order recovery of possession, injunction and to make an order to open and evict occupants of the property in dispute being House No. 2, East Cantonments. 5<sup>th</sup> interested party also sought an order for the Ministry of Foreign Affairs to use their machinery to retrieve accumulated rent of US$1.5 million from the Bulgarian Embassy.</p> <p>At the hearing of the application for mandamus 5<sup>th</sup> interested party and his counsel were the only persons present and upon hearing his counsel, the application was granted as prayed on 1<sup>st</sup> September, 2014 by His Lordship Justice Bright Mensah.</p> <p>Applicant herein got to know of the orders of mandamus when the 5<sup>th</sup> interested party went to execute the writ of possession. So they filed a motion in the same suit No. BMISC 995/14 praying the court to set aside its orders on grounds that the judgment that 5<sup>th</sup> interested party relied upon in the application for mandamus had been set aside at the time he filed the application.  Applicant also brought to the attention of the court the issue of diplomatic immunity that had been decided upon by the Court of Appeal.  This application to set aside was heard by His Lordship Justice Anthony Oppong who refused it on 3<sup>rd</sup> June, 2015.</p> <p>Applicant has therefore filed this application praying for certiorari to quash the orders of Bright Mensah J. on the following grounds:</p> <p class="rteindent1">(i)   The court had no jurisdiction to make orders in respect of premises being used for a diplomatic mission on account of diplomatic immunity pursuant to the Diplomatic Immunities Act (1962) Act 148.</p> <p class="rteindent1">(ii)   The orders of the court are void because they were premised on a judgment that had been set aside by the Court of Appeal to the knowledge of the 5<sup>th</sup> interested party.</p> <p class="rteindent1">(iii)   The orders of the court for possession forcing premises open, eviction of occupants’, recovery of rents were not warranted by any law, enactment or rule of procedure since the matter that was before the court was an application for mandamus.</p> <p>The 4<sup>th</sup> and 5<sup>th</sup> interested parties have resisted this application for certiorari.  They submitted in their statements of case that the applicant filed an appeal against the orders he is now seeking to quash by certiorari and that the two cannot be maintained simultaneously.  They have also argued that the application has been filed out of time since the impugned decision was made on 1<sup>st</sup> September, 2014 and this application is filed on 9<sup>th</sup> July 2015, more than the 90 days provided under the rules of this court.  It is also their case that the applicant was not a party in <strong>Suit no. BMISC 995/14</strong> so he has no <em>locus standi</em> to apply for certiorari.</p> <p>Finally the interested parties argue that on the merits, 5<sup>th</sup> interested party is the owner of the premises as a 50 years lease applicant is relying on to claim the premise is invalid. </p> <p>It is well-settled that certiorari will be granted to quash a decision of a court that has been made without jurisdiction or in excess of jurisdiction or where there is an error of law apparent on the record that makes the decision a nullity.  Certiorari will also be granted to quash a decision given in breach of a rule of natural justice. See the cases of;</p> <p><strong>Republic V High Court, Accra; Ex Parte Salloum [2011] 1 SCGLR 574 and Pobee Tufuhene Elect of Apam V Yoyoo [2013-2014] 1 SCGLR 208. </strong></p> <p>An examination of the application for mandamus filed by the 5<sup>th</sup> interested party on 21<sup>st</sup> July 2014 shows clearly that he was placing reliance on the decision of Abada J. which to his knowledge had been set aside by the Court of Appeal three years earlier.</p> <p> Relief (c) on the motion paper is as follows;</p> <p>“(c) for an order of mandamus to compel the Lands Commission to fully comply with the orders of mandamus issued by the High Court, Accra in High Court, Accra <strong>Suit No.BC285/07</strong>.”</p> <p>Further, at paragraphs 14, 16, and 18 of the affidavit in support of the application for mandamus, 5<sup>th</sup> interested party referred to the suit against Bulgarian Embassy and stated that judgment had been given against them for ejectment, recovery of possession and accumulated arrears of rent. We shall quote the said paragraphs;</p> <p class="rteindent1">“14. The Bulgarian Embassy entered into a Tenancy Agreement in respect of the house in dispute with the late Mr Theophilus Kofi Leighton on 17/10/79. The initial term was 5years from 1/2/79 to 31/1/84.</p> <p class="rteindent1">16. That when the Bulgarian Embassy was not paying the accrued rents that had accumulated to over US$1.5 million Applicant herein was forced to take them to court for redress.</p> <p class="rteindent1">18. That judgment has been given against the Bulgarian Embassy for ejectment and recovery of possession of the premises in dispute for nonpayment of rent and accumulated areas of rent.”</p> <p>From the above facts it is clear that 5<sup>th</sup> interested party was basing on the non-existing judgment of Abada J to seek the orders he prayed the court for. This is a clear instance of placing something on nothing and as Lord Denning said in <strong>Mcfoy v United Africa Co. Ltd [1961] 3 All ER 1169. PC;</strong></p> <p class="rteindent1">“You cannot put something on nothing and expect it to stay there. It will collapse”</p> <p>See also <strong>Mosi v Bagyina [1963] 1GLR 337.  </strong></p> <p>The 5<sup>th</sup> interested party was well aware of the fact that the judgment in his favour in Suit No. BC 285/07 had been set aside and the impression we get is that the application for mandamus was calculated to undermine the judgment of the Court of Appeal and overreach that court.  The processes filed in this application show that 5<sup>th</sup> interested party has filed an appeal against the decision of the Court of Appeal to this court and that is the proper course of conduct that a party in 5<sup>th</sup> interested party’s position can embark upon.</p> <p>It has long been settled in this court that the fact that a person has appealed against a decision does not preclude him from applying for that decision to be quashed under the supervisory jurisdiction of this court conferred by Article 132 of the 1992 constitution.  In the case of <strong>Republic v. High Court</strong>, <strong>Cape Coast; Ex parte Ghana Cocoa Board (Apotoi III Interested Party</strong>) <strong>[2009] SCGLR 603 at 612</strong> Dr. Date-Bah JSC. Stated as follows:</p> <p class="rteindent1">“It is no answer to this want of jurisdiction to argue, as does the interested party’s counsel, that <em>certiorari</em> is a discretionary remedy and that because the applicant has filed an appeal against Ayimeh J’s refusal to set aside the garnishee order, this court should dismiss the application. The right to appeal from the High Court to the Court of Appeal and the right to apply for the exercise of the supervisory jurisdiction of this court are both constitutional rights and I see nothing in the constitutional provisions governing these rights that makes them mutually exclusive.  In particular, the supervisory jurisdiction is conferred in article 132”</p> <p>See also the case of <strong>Republic v. High Court Accra; Ex parte Komley Adams</strong> [2012] 1SCGLR 111</p> <p>The interested parties in this case have argued that the applicant is out of time and that they ought to have filed the application within ninety days of the decision being sought to be quashed; that is within ninety days from 1<sup>st</sup> September, 2014.  It does appear as if counsel for the interested parties have not taken note of the change in the rules of this court with regard to the supervisory jurisdiction of the court.</p> <p>The original provision in the <strong>Rules of the Supreme Court, 1996 (CI.16)</strong> provided as follows;</p> <p class="rteindent1">“62. An application to invoke the supervisory jurisdiction of the court shall be filed within three months of the date of the decision against which the jurisdiction is invoked unless the time is extended by the court.”</p> <p>This provision has been amended by the <strong>Supreme Court (Amendment) Rules 1999 (CI 24)</strong> which states as follows;</p> <p class="rteindent1">“An application to invoke the supervisory jurisdiction of the court shall be filed within 90 days of the date when the grounds for the application first arose unless time is extended by the court.”</p> <p>In the case of <strong>Republic v. High Court, Kumasi; Ex parte Mobil Oil (Ghana) Ltd (Hagan Interested Party) [2005-2006] SCGLR 312</strong>, Dr Twum JSC delivering the lead judgment of the court observed as follows:</p> <p class="rteindent1">“With the amendment effected by CI 24, the time limit within which an application to invoke the supervisory jurisdiction of the court may be filed is determined by reference to the date when ‘the grounds for the application first arose,’ and not the “date of the decision against which the jurisdiction is invoked.’ It is possible the two bases of reckoning may achieve the same result in a few cases but it is most probable that a different time limit will be determined if the amended rule 62 is used.”</p> <p>This court has been cautious about laying down strict guiding principles in determining the existence, for the first time, of sufficient grounds for invoking our supervisory jurisdiction and the recommended approach has been to deal with the issue on a case by case basis.  See the case of <strong>Republic v. High Court</strong> <strong>(Fast Track Division) Accra, Ex parte State Housing Corporation Co. Ltd (No.2) (Koranten-Amoako Interested Party) [2009]SCGLR 185.</strong></p> <p>On the facts of this case the applicant, who was not made aware of the mandamus application and the orders made on 1<sup>st</sup> September 2014 got to know about them when 5<sup>th</sup> interested party attempted to go into execution and applicant filed a motion before the court which made the orders to have the court set aside its own orders.  This application was determined on 3<sup>rd</sup> June, 2015, that is after more than five months. Applicant then filed this present application on 9<sup>th</sup> July, 2015. From this set of facts our interpretation of the date the grounds for invoking the supervisory jurisdiction of this court first arose is the date the High Court refused applicant’s motion to set aside the orders of mandamus. </p> <p>We think it is a commendable practice to first go before the court which made the impugned decision to ask it to set aside its orders the moment you become aware of those orders.  We should however not be understood to be laying down a fixed rule that no matter how long it takes an applicant to apply to the high Court to set aside its decision, this court will consider the date of refusal of that application as the date the grounds for an application to invoke the supervisory jurisdiction of this court first arose.  For instance, an application made to the High Court in circumstances that is considered an abuse of the process of the court will not be taken into account in determining the date the grounds for invoking the supervisory jurisdiction of this court arose for the first time.</p> <p>As we have pointed out in respect of this court’s decisions in <strong>Ex parte Mobil Oil (supra) and Ex parte State Housing Corporation (supra)</strong>, this decision is to be confined to the facts of this case.</p> <p>Another reason why the argument of time-bar in this case does not impress us is that we have taken the view that the orders made by the court in the application for mandamus were in excess of the jurisdiction of the court since there was no judgment granting the reliefs 5<sup>th</sup> interested party was purporting to enforce. The decision of the court is patently void and time limitations do not apply where the decision sought to be quashed is a nullity as in this case.  See <strong>Republic v. High Court, Accra, Ex parte Speedline Stevedoning Ltd [2007-2008] SCGLR</strong> and <strong>Republic v. High Court, Accra Ex parte Ghana Chartered Institute of Bankers [2011]2 SCGLR 941.</strong></p> <p>The interested parties have argued before us that since the applicant was not a party to the motion for mandamus they have no <em>locus standi</em> to invoke our supervisory jurisdiction to quash the decision made in that suit.  On the facts of this case the applicant is a person who is aggrieved by the impugned decision and therefore they have every right to seek to have it quashed.  Once a person is aggrieved as being  directly affected by a decision, though he may not be a party to the proceedings culminating in the decision, he has standing to apply for this court to exercise its supervisory jurisdiction to correct the proceedings or quash the decision.  See the case of <strong>Republic v. High Court, Ho Exparte Awusu( No.1) ( Nyonyo Agdoada( Sri III) Interested Party)[ 2003-2004] SCGLR. 864.</strong></p> <p>This matter of locus standing for an application for certiorari has been taken even further by the decisions in the cases of <strong>Republic v. Korle Gonno District Magistrate Grade I; Exparte Amponsah [1991] 1 GLR 353, CA</strong>; In <strong>re</strong> <strong>Appenteng (Decd):</strong> <strong>Republic v. High Court, Accra Ex parte Appenteng [2005-2006] SCGLR 18</strong> and <strong>Republic v. High Court, Ho: Ex parte Diawuo Bediako II &amp; Anor (Odum &amp; Ors Interested Parties [2011]2SCGLR 704</strong>. The decision in <strong>Ex parte Amponsah,</strong> which has been endorsed by this court in the judgments referred to above, is as follows (as stated in holding (1) of the headnote to the  case);</p> <p class="rteindent1">“The orders of certiorari and prohibition, as the form of the proceedings showed, were means for ensuring that the machinery of public administration worked properly and that justice was done to individuals.  And because these remedies had a special public aspect to them, an applicant for certiorari or prohibition did not have to show that some legal right of his was at stake.  If the action concerned an excess of jurisdiction or abuse of power, for example, the court would quash it at the instance of a mere strange, although it retained the discretion to refuse to quash it if it thought that no good would be done to the public.  <em>The remedies of certiorari and prohibition were therefore not restricted by the notion of locus standi, and every citizen had a standing to invite the court to prevent some abuse of power; and in so doing he might claim to be regarded not as a meddlesome busybody but a public benefactor.”</em></p> <p>We have taken note of the complaint of the 5th interested party that the applicant’s lawyer appears to be taking inappropriate advantage of diplomatic immunity of his client and frustrating the 5<sup>th</sup> interested party’s efforts at vindicating what he claims to be his rights in respect of the property. We however fail to see that continuing, if that is what applicant’s lawyer was doing, for according to the interested parties, the premises is no longer being used as a diplomatic mission.</p> <p>In our view, whatever challenges the applicant faced in the vindication of his rights cannot warrant the apparently deliberate act of undermining the decision of the Court of Appeal and applying for orders that clearly had not been granted by the trial court. One instance is that, 5<sup>th</sup> interested party prayed for an order for payment of rent of US$1.5million when even the judgment that had been set aside granted 5<sup>th</sup> interested party only US$598,225.17. To refuse to quash the orders of the High Court dated 1<sup>st</sup> September, 2014 will be to allow the 5<sup>th</sup> interested party to hold on to the benefit of a judgment that has ceased to exist.</p> <p>For the above reasons we grant the application.</p> <p class="rtecenter">(SGD)        G.    PWAMANG</p> <p class="rtecenter">JUSTICE OF THE SUPREME COURT</p> <p class="rtecenter">(SGD)          W.    A.   ATUGUBA</p> <p class="rtecenter">JUSTICE OF THE SUPREME COURT</p> <p class="rtecenter">(SGD)         J.    ANSAH</p> <p class="rtecenter">JUSTICE OF THE SUPREME COURT</p> <p class="rtecenter">(SGD)          P.   BAFFOE -  BONNIE</p> <p class="rtecenter">JUSTICE OF THE SUPREME COURT</p> <p class="rtecenter">(SGD)         A.   A.   BENIN </p> <p class="rtecenter">JUSTICE OF THE SUPREME  COURT</p> <p><u>COUNSEL</u></p> <p> KWESI   AUSTIN  ESQ.  FOR THE APPLICANT.</p> <p> CECIL ADADEVOH  (P. S. A)  3<sup>RD</sup> AND 4<sup>TH</sup>  INTERESTED PARTIES.</p> <p> T.  N.  WARD  -  BREW  ESQ. FOR  THE 5<sup>TH</sup>  INTERESTED  PARTY.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="https://old.ghalii.org/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ghalii.org%2Fgh%2Fjudgment%2FSupreme%2520Court%2F2016%2F10%2FTHE%2520REPUBLIC%2520VRS.%2520HIGH%2520COURT%2520ACCRA%2520EXPARTE%2520THE%2520CHARGE%2520D%2527%2520AFFAIRS%2520BULGARIAN%2520EMBASSY%2520%2526%2520ORS.pdf" data-src="https://old.ghalii.org/gh/judgment/Supreme%20Court/2016/10/THE%20REPUBLIC%20VRS.%20HIGH%20COURT%20ACCRA%20EXPARTE%20THE%20CHARGE%20D%27%20AFFAIRS%20BULGARIAN%20EMBASSY%20%26%20ORS.pdf">https://old.ghalii.org/gh/judgment/Supreme%20Court/2016/10/THE%20REPUBLIC%20VRS.%20HIGH%20COURT%20ACCRA%20EXPARTE%20THE%20CHARGE%20D%27%20AFFAIRS%20BULGARIAN%20EMBASSY%20%26%20ORS.pdf</iframe> </div></div></div> Fri, 15 Sep 2017 10:37:34 +0000 admghana 130 at https://old.ghalii.org https://old.ghalii.org/gh/judgment/supreme-court/2016/6#comments