PAPAFIO
vs.
SAM
[HIGH COURT ACCRA]
[1960] GLR 126
DATE: 27TH MAY, 1960
COUNSEL:
OBETSEBI LAMPTEY FOR PLAINTIFF.
FRANCOIS FOR DEFENDANT.
CORAM:
OLLENNU, J.
JUDGMENT
OLLENNU J.
(His Lordship referred to the issues raised and continued):
I observe from the pleadings of both parties that they each rely upon the
same root of title, namely the Odoi Kwao family of Osu, that is to say, both
parties admit or contend that the proper authority who can validly confer
right of ownership, possession and occupation of the portion of land in
dispute is the Odoi Kwao family.
Secondly in his statement of defence, the defendant admits the claim or
averment of the plaintiff that a piece of land in the area has been conveyed
to him by the said Nii Odoi Kwao family. I say this because although in
paragraphs 2 and 3 the defendant pleaded that he was not in a position to
admit or deny the plaintiff’s said averment, yet in paragraph I of the
statement of defence, he has pleaded a follows: “The defendant will further
aver that as far as the plaintiff’s eastern boundary is affected, the same has
been demarcated by a cement wall placed on the land of the plaintiff,”
meaning that he acknowledges plaintiff’s ownership and possession of land
in the area, but contends that that land of which the plaintiff is the owner is
limited on the east by a certain cement wall. In reply to that defence the
plaintiff pleaded that the said cement wall (pleaded by the defendant) is a
partition which he made to divide the land granted to him by the said Odoi
Kwao family into two portions for purposes of separate development. This is
set out in paragraph 2 of the reply as follows:—
“In reply to paragraph 1 of the statement of defence, the plaintiff says
he had his pillars fixed on the extreme corners of his land to
demarcate the plot. The cement block fence was to partition the
plaintiff’s plot for purpose of development.”
It appears from these pleadings, therefore, that for the determination of the
plaintiff’s claim the court will not be bound to consider whether or not he
obtained a valid grant by customary law from the Odoi Kwao family. All that
the court would be required to determine upon the pleadings as far as the
grant of the land is concerned will be whether or not the land in dispute falls
within the limits of the land granted to plaintiff by the Odoi Kwao family. The
determination of that issue will not depend upon customary law; it is purely a
question of fact the determination of which depends upon boundaries and
dimensions of the land as contained in the plaintiff’s deed of conveyance and
the plan attached thereto, the determination of those boundaries on the
ground, accurate measurements on the ground and comparison of those
measurements with the dimensions in the document and the plan. In my
opinion it is erroneous to argue that because the defendant puts up a plea
which raises customary law as far as his own defence is concerned, the
whole case is one, the determination of which depends upon customary law.
A plaintiff comes to court with a claim; he either succeeds or fails upon that
claim. What the court has to determine therefore is the claim; if the
determination of that claim of the plaintiff does not involve customary law,
an attempt to defeat that claim of the plaintiff by a defence, the proof of
which involves customary law, will not make the claim or the issue joined
between the parties, one which must be determined by customary law. Even
where the defendant counterclaims and the determination of his
counterclaim will have to be by customary law, that in itself will not make the
suit one properly cognizable by a local court unless it makes it necessary
that the determination of the plaintiff’s claim should be by customary law.
This is the law as stated in proviso (d) to section 55 of the Local Courts Act;
and it is made abundantly clear by a judgment of the West African Court of
Appeal in the case of Tackie v. Nelson and Others (12 W.A.C.A. 419). In that
case the plaintiff as landlord claimed arrears of rent and recovery of
possession of premises demised to the defendants. The co-defendant to
whom the defendant had been paying rents was joined as a party. In her
defence she pleaded that she was the real owner by right of succession to
her mother, and that the plaintiff was not the owner, and therefore not
entitled to his claim. It was contended on behalf of the co-defendant that by
reason of her defence that the property, the subject-matter of the suit, is
vested in her by customary law of succession as against the plaintiff, the suit
was one properly cognizable by a native court and that the jurisdiction of the
High Court was thereby ousted. The West African Court of Appeal held that
the claim before the court was a claim under the Rent (Control) Ordinance,
1947 and a deed of lease, and its determination did not involve the
application of customary law, and therefore it was not one which was
properly cognizable by a native court, and that the defence of the co-
defendant that, as between her and the plaintiff, she was the owner of the
property by customary law, did not take the suit out of the jurisdiction of the
High Court. In this case the plaintiff’s claim is for a declaration of title,
recovery of possession, damages for trespass and perpetual injunction. What
I have to consider is: what is the main claim or main issue joined between
the parties upon this writ and the pleadings? Since (as I have already stated)
the question of the plaintiff’s root of title is not in issue, the main issues left
are:
(1) Whether the plaintiff’s grant includes the area in dispute, and
(2) Whether perpetual injunction should be grnated to restrain the
defendant from continued interference with the plaintiff in his
ownership, possession and occupation of the land.
As I have already stated, the issue whether the area in dispute is included in
the plaintiff’s claim involves the measurements contained in the document
which the plaintiff relies upon attached to it, the interpretration of the
document and the plan and their comparison with measurements on the
ground. That claim in my opinion is similar to the case of Richardson v.
Eshun (6 W.A.C.A. 14) and is one, the trial of which by a local court is not
desirable.
As to the claim for injunction, there is no question that the local court, which
is a creature of statute, driving its jurisdiction solely from that statute, is not
vested with jurisdiction to grant such an equitable relief; and there is also no
question that the claim for injunction in this case is a main claim, desired to
remedy a wrong which threatens to continue. That being so, the claim will
not be one which is properly congnizable by a local court.
Finally since both the plaintiff and the defendant rely upon the same root of
title, if the evidence should prove that the area in dispute has been granted
to each of them, or forms part of the area of land grnated to each of them by
the same grantors, the question will be: which of these two grantees has
priority as far as the interest in that piece of land is concerned? The
determination of that important issue will depend upon the construction of
section 21 of the Land Registry Ordinance Cap. 133. That interpretation is
not one which is within the competency of a local court. In view of these
points which I have discusssed, I cannot form the opinion that this is a suit
which is properly cognizable by a local court. That being so, I cannot refuse
exercise of jurisdiction which belongs to me under section 24 of the Courts
Ordinance, because although I am satisfied that there is a competent local
court established in this Region, I am not of the opinion that this suit is one
properly cognizable by a local court.
I can only exercise the powers under section 55 of the Local Courts Act as I
have already said when I form the opinion that this suit is one which is
properly cognizable by a local court. I am not of the opinion that this suit is
properly cognizable by a local court. I rule that this court has jurisdiction and
the suit should be retained.