REPUBLIC vs. DISTRICT MAGISTRATE GRADE II, BIBIANI; EX PARTE DAAH [1980]DLHC1626

Date	1980-08-10
Suit No.
Citation No.	[1980]DLHC1626

TWUMASI J.

FORSON FOR THE APPLICANT.

AHLIJAH CHIEF STATE ATTORNEY FOR THE RESPONDENT.

[1980]DLHC1626
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>DISTRICT MAGISTRATE GRADE II, BIBIANI; EX PARTE DAAH<o:p></o:p>[HIGH COURT, SEKONDI] <o:p></o:p>[1980] GLR 764<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
10 AUGUST 1981<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">

FORSON FOR THE APPLICANT.<o:p></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">

TWUMASI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TWUMASI J.<o:p></o:p>This is
an application for the prerogative order of prohibition to issue against the
District Magistrate Grade II, Bibiani, on the ground that he lacks jurisdiction
to hear and determine a land suit pending before him. Needless to point out,
section 38 of the Courts Act, 1971 (Act 372), limits the jurisdiction of the
district court grade II in land matters to lands whose value does not exceed
one thousand cedis (¢1,000). This statutory provision does not, however, seem
to be riderless because section 37 (3) of the Act imposes a mandatory duty upon
the district court to proceed to hear and determine any dispute relating to any
land notwithstanding that its value exceeds one thousand cedis (¢1,000) “if the
parties agree that it should do so.” Obviously, the converse must also be
accorded an implied statutory force that, where the parties do not agree, the
district court shall not proceed to hear and determine the suit. There are
therefore two prerequisites: (a) the evidence that the value of the land
exceeds one thousand cedis (¢1,000), and (b) an agreement by the parties that
the court proceeds to hear and determine the suit. It is section 37 (2) of the<o:p></o:p><o:p>&nbsp;</o:p>Courts
Act, 1971, that imposes a mandatory duty on the district court to call evidence
as to the value of any land where a dispute arises as to its value. Where the
court finds from the evidence that the value of the land is in excess of the
value specified for the jurisdiction of the court, the court shall,
notwithstanding the excess value, proceed to hear the case if the parties agree
that it should do so. The first question to be asked always is whether there is
a dispute as to the value of the land.<o:p></o:p><o:p>&nbsp;</o:p>In the
instant case, the defendant disputed the value of the land by swearing to an
affidavit that it exceeded ¢1,000. He estimated it to be worth ¢3,000. The
learned magistrate conceded that the performance of the mandatory duty imposed
upon him by section 37 (2) of the Act was required at that stage of the
proceeding. This statutory duty was not performed. The learned magistrate
stated in an affidavit as his reason for the default that before he could call
evidence, the defendant (the applicant in the present proceedings willingly
withdrew his affidavit. But rather puzzling enough, this same defendant has averred
in his affidavit before this court that he in fact raised an objection to the
jurisdiction of the trial magistrate but despite the objection, the magistrate
said that if he refused to give evidence, judgment would go against him so he
grudgingly gave evidence. Apparently, the defendant was not represented by
counsel. The case proceeded to close of evidence. Thereafter, the defendant
instructed his solicitor to file a motion objecting to the jurisdiction of the
court. This motion was dismissed by the magistrate.<o:p></o:p><o:p>&nbsp;</o:p>It is
rather unfortunate that the learned magistrate should have created a leeway for
needless controversy in such a simple matter and thus involving all concerned
in an unnecessary expenditure of time, energy and money. In Quist v. Kwatreng
[1961] 2 G.L.R. 605, Ollennu J. (as he then was) as resourceful of the<o:p></o:p>law as
ever, after his usual penetrating research through Halsbury’s Laws of England
(3rd ed.), Vol. 9 at pp. 349-350 and a few English cases, delivered himself at
pp. 613-614 thus:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Since as
an inferior court, the jurisdiction of the local court in any matter must be
apparent on the proceedings before it, the giving of the necessary consent
which should vest the local court with jurisdiction to continue hearing such a
case, must be given expressly and be recorded as part of the proceedings, it is
not consent which should be merely implied, it is consent which must be
positively expressed, otherwise it will not appear on the face of the
proceedings and there will be complete absence of jurisdiction.”<o:p></o:p><o:p>&nbsp;</o:p>