AMETAMEH vs. ATAKPLAI III [1960]DLHC22

Date	1960-05-27
Suit No.
Citation No.	[1960]DLHC22

OLLENNU J.

[1960]DLHC22
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >AMETAMEH <o:p></o:p>vs.<o:p></o:p>&nbsp;ATAKPLAI III<o:p></o:p>&nbsp;[HIGH
COURT, ACCRA]<o:p></o:p>[1960] GLR 129<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
27TH MAY, 1960.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

<o:p>&nbsp;</o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU, J.<o:p></o:p>The claim
in this case is for injunction and damages for trespass; and the subject matter
is an island called Dormellam Kewu, in the River Volta, in the Klepa Division
of Osudoku. The plaintiff pleaded that he is owner in possession of the said
island, and that the defendant has wrongfully entered upon his said island and
been committing waste by taking and carrying away sand therefrom. In his
statement of defence the defendant denied the plaintiff’s ownership, possession
and occupation of the land; he also denied trespassing on the said island as
alleged, and pleaded (1) that the place where he has been taking sand from is
about two and a half miles away from the island the subject of the suit, and
(2) that the court has no jurisdiction in the matter. In reply the plaintiff
pleaded that the defendant is estopped (1) by his conduct and (2) by an
arbitration award from denying his, the plaintiff‘s ownership, possession and
occupation of the island.<o:p></o:p><o:p>&nbsp;</o:p>On the
question of jurisdiction of this court to entertain the suit, counsel for the
defendant submitted as a preliminary objection that since the defence has put
the plaintiff’s title and possession of the island in issue, the suit is one
properly cognizable by a local court, and the court should therefore stop the
hearing of the case and refer the parties to a competent local court in
compliance with section 55 of the Local Courts Act, No. 23 of 1958. Opposing
that submission, counsel for the plaintiff contended that the writ of summons
included a claim for perpetual injunction, a relief which the local court is
not competent to entertain, and therefore upon the authority of Tackie v.
Nelson and Others (12 W.A.C.A. 419) this court has jurisdiction which it should
not decline to exercise.<o:p></o:p>Upon that
preliminary point I ruled that at the stage where the point was taken, there
was nothing to satisfy me that the suit is one properly cognizable by a local
court, and stated that I would give reasons for my said ruling at a later
stage.<o:p></o:p>Having
heard the whole evidence and submissions of counsel on both sides I am more
confirmed in the opinion than ever that this is not a suit which is properly
cognizable by a local court.<o:p></o:p><o:p>&nbsp;</o:p>In my
opinion a prayer for injunction as one of the reliefs sought in a writ of
summons does not by itself show that the suit is not one which is properly
cognizable by a local court. But where it appears either upon the pleadings or
from the whole of the proceedings that prevention of the continuance of a wrong
is the main or one of the main injuries sought to be remedied, a claim for an
injunction will make the suit one not properly cognizable by a local court. If
it were not so, litigants will circumvent the Local Courts Act and thereby
defeat the intention of the legislature, by including a claim for injunction or
a claim for a relief which is not within the competency of a local court in all
claims they make before the court in order to compel the courts to exercise
jurisdiction which, by reason of section 55 of the Local Courts Act, they would
not otherwise exercise.<o:p></o:p><o:p>&nbsp;</o:p>Upon this
principle I proceed now to give the reasons for my ruling that this suit is not
one properly cognizable by a local court.<o:p></o:p>In 1957
the plaintiff instituted an action in this court against one Chief Tetteh Ablor
and others for declaration of his title to the identical island now in dispute,
and for an injunction; he recovered judgment against those defendants on the
12th March, 1959. It is admitted by the defendant that it was he who took the
plaintiff to instruct solicitors and counsel in that suit, and that he
supported the plaintiff throughout in the assertion of his said right to
ownership and possession of the island. By his said conduct in that case, the
defendant held out the plaintiff to counsel and through him to this court that
the plaintiff is the owner of the island. Having done that he cannot now be
heard to dispute the plaintiff’s title to and possession of that very island.<o:p></o:p><o:p>&nbsp;</o:p>