REPUBLIC vs. HIGH COURT, ACCRA AND ANOTHER EX PARTE DARKE XII AND [1992]DLSC4977

Date	1992-03-30
Suit No.	[1992 – 1993] 3 G B R 1138 – 1251 C.A
Citation No.	[1992]DLSC4977

ADADE JSC

AMUA-SEKYI JSC

OSEI-HWERE JSC

AIKINS JSC

WIREDU JSC

HAYFRON-BENJAMIN JSC

KPEGAH JA

S KWAMI TETTEH (WITH HIM NUTIFAFA KUENYEHIA) FOR THE APPLICANTS.

B J DA ROCHA (WITH HIM DR DJAMSON AND M MENSAH) FOR THE RESPONDENTS.

[1992]DLSC4977
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>HIGH COURT, ACCRA AND
ANOTHER EX PARTE DARKE XII AND<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

[1992 – 1993] 3 G B R 1138 – 1251
C.A&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 30 MARCH 1992<o:p></o:p>

B
J DA ROCHA (WITH HIM DR DJAMSON AND M MENSAH) FOR THE RESPONDENTS.<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 1.0pt 0in">

ADADE
JSC, AMUA-SEKYI JSC, OSEI-HWERE JSC, AIKINS JSC, WIREDU JSC, HAYFRON-BENJAMIN
JSC, KPEGAH JA<o:p></o:p>

</div>ADADE JSC. <o:p></o:p>This
is an application for certiorari asking this court, in the exercise of its
supervisory jurisdiction, to quash the decision of the High Court presided over
by Omari-Sasu J dated 22/2/89, as well as that of the Court of Appeal (coram:
Essiem, Ampiah JJA, Lamptey JA dissenting), dated 19/7/90. These remedies are
sought on the ground that both courts acted without jurisdiction.<o:p></o:p>The
dispute which has resulted in this application came to the courts for the first
time in 1952, precisely 40 years ago. By 1957 it was in the Peki Native Court,
from where it was later transferred to the High Court, Accra. It was later
transferred to the High Court, Ho. The present applicants were the defendants,
and the present 2nd respondent was the plaintiff. The first respondent, Kwadjo
Dei XI was not a party to that suit. In that action the plaintiff sued for
damages for trespass to:<o:p></o:p>“All that piece or parcel of land
situate lying and being in Avetile area within the Adonten division of the Peki
state and known commonly and called Awalime, Avega, and Tiame lands, bounded on
the north-east by Abiakpetre, on the south-east by the Tsawoe river, on the
south-west by Avedofor’s property and on the west by the plaintiff’s property.”<o:p></o:p>Upon
the transfer to the High Court, Ho, pleadings were ordered, filed and
exchanged. The case was eventually heard by Francois J. The parties closed
their cases in June 1972, when it was adjourned for judgment. Unfortunately,
judgment could not be given until more than three years later, on 11/11/75. It
is a pity that the judgment was delayed for so long, for it would seem that a
lot of the misfortune which has stalked this case has stemmed precisely from
this inordinate and unjustifiable delay, no matter what the circumstances. It
cannot be right that in a case of this dimension, and given the plight of the
people involved, an ordinary judgment should be subordinated to any other
assignment, even assignments of state, to the extent that the parties had to be
held in suspense for as long as three years. Involvement in other public duties
may only help to explain the delay, it cannot justify it.<o:p></o:p>Judgment
was eventually pronounced on 11/11/75. It went in favour of the plaintiff. It
is worth mentioning at this juncture that one year after all the evidence had
been led, and while the judgment was pending, the then Government, the National
Redemption Council (NRC) passed the Stool Lands Boundaries Settlement Decree
1973 (NRCD 172). That law made certain provisions which deserved to be
considered by the High Court. From all indications, none of the parties knew of
this law. Although it is always assumed that the law is in the bosom of the
court, in this instance, it is safer to say that as a matter of fact, the
Decree was not brought to the attention of the court. The judge did not know of
its existence. He gave his judgment two years after the Decree without so much
as a nodding reference to the Decree. This was obviously an error, which stood
to be corrected on appeal.<o:p></o:p>The
defendants lost in the High Court and, expressing themselves as aggrieved,
appealed to the Court of Appeal. In the Court of Appeal, reference was made to
the Decree for the first time; the appellants raised it in the last of the
twenty-four additional grounds of appeal, which they took as a preliminary
objection. It was worded as follows:<o:p></o:p>“24. In view of the learned trial
judge’s own viewpoint, implicit in the terms of his judgment, that the real
issue in this suit is the situation of the boundary between the lands of
Peki-Avetile on the one hand and Awudome-Tsito lands on the other and in view
of his own ruling that the plaintiff, as chief of Peki-Avetile has a
jurisdictional interest in Peki-Avetile lands, the learned trial judge’s
judgment of 11 November 1975 is null, void and of no effect, since on the date
on which the said judgment purports to have been delivered, the learned trial
judge had no jurisdiction over the subject-matter of this suit as defined by
himself, by reason of the provisions of the Stool Lands Boundaries Decree 1973
(NRCD 172) (which came into force on or about the 4th day of May 1973) and, in
particular, of section 4 thereof.”<o:p></o:p><o:p>&nbsp;</o:p>There
was another preliminary ground, that of the capacity of the plaintiff. I shall
refer to this later.<o:p></o:p>Arguments
were heard on Ground 24 from both parties. The ruling on this ground was incorporated
in the final judgment of Lassey JA as follows:<o:p></o:p>“The second preliminary objection
raised by Mr Joe Reindorf was that the jurisdiction of the High Court, Ho can
only be exercised when it was shown that the subject-matter of adjudication did
not involve title to land and boundary dispute between ‘stools’ or chiefs or
‘states’. This question was also fully argued before the learned trial judge
and dealt with at length in his ruling. It is, I think, sufficient to say now
that I am in agreement with the learned judge’s view that the land in dispute
here is individually owned by families and that the land is not stool property
in the sense in which stool lands are regarded in other parts of this country,
particularly in the Akan-speaking areas. Where the case involves boundary
issues between stools or states, statutory jurisdiction is specifically
conferred upon the Stool Lands Boundary Commissioner to deal with it. The
jurisdiction that was invoked in the High Court in the trial of the action
which resulted in this appeal was given under section 14(1) of the Courts Act
1962. Therefore, like the learned trial judge, I have come to the same
conclusion that the action was properly constituted or established and that the
court was competent to entertain and hear it, as there was jurisdiction.”<o:p></o:p>This
pronouncement clearly shows that on the issue whe</main>