KASSER vs. RAZIEL CONSTRUCTION LTD (NO 1) [1993]DLCA4330

Date	1993-03-11
Suit No.
Citation No.	[1993]DLCA4330

LAMPTEY JA

ADJABENG JA

FORSTER JA

OWUSU YEBOAH FOR THE RESPONDENTS.

[1993]DLCA4330
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													<main id="main" class="content" style="min-height: 60rem" >KASSER<o:p></o:p>vs.<o:p></o:p>RAZIEL CONSTRUCTION LTD
(NO 1)<o:p></o:p>[COURT
OF APPEAL, 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">

[1992-93] 2 G B R&nbsp; 508 – 511&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 11 MARCH 1993<o:p></o:p>

</div>COUNSEL:<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">

OWUSU
YEBOAH 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">

LAMPTEY
JA, ADJABENG JA, FORSTER JA<o:p></o:p>

</div>LAMPTEY
JA. On 7 December 1992, we dismissed the application of Patrick Moffact Kasser
(hereinafter referred to as “Kasser”) for a stay of execution of the judgment
of the Circuit Court, Accra, dated 13 October 1992 in favour of Raziel
Construction Limited (hereinafter referred to as “the company”). We now give
our reasons.<o:p></o:p>The
company sued Kasser and claimed recovery of possession of House No C260/3 Ring
Road Central, Accra. On 13 October 1992 the Circuit Court, Accra, entered judgment
for Raziel against Kasser. The court made the order following:<o:p></o:p>“Defendant (Kasser) must therefore
vacate forthwith to enable plaintiffs enjoy the fruits of their labour. The
matter had dragged on for too long.”<o:p></o:p>Kasser
was dissatisfied and aggrieved by the judgment and appealed to this court. He
then applied to the trial court for a stay of execution of the judgment. The
application was refused. In the circumstances, Kasser repeated the application
for stay of the judgment in this court. The application was supported by an
affidavit in which it was sought to show that the appeal of Kasser against the
judgment of the circuit court had a good chance of success. The other ground in
support of the application was that Kasser would suffer greater hardship than
the company if this application for stay of execution were refused.<o:p></o:p>Before
us, learned counsel for Kasser submitted that the judgment could not be
supported in law. First, he contended that the circuit court lacked
jurisdiction to hear and determine the plaint of the company because the Land
Title Registration Law 1986 (PNDCL 152) s 12(1) ousted the jurisdiction of the
court.<o:p></o:p>Learned
counsel for the company submitted that PNDCL 152 did not apply to the case
before the court. He pointed out that the root of title of the company was a
lease that was duly stamped and registered as No 4557/86 in 1986. He stated
that the area of Accra where the land in dispute is situated was declared a
compulsory registration area pursuant to PNDCL 152 on 10 November 1990. In his
view the registered title of the company was not affected by the 10 November
1990 declaration.<o:p></o:p>We
will deal first with the issue of jurisdiction. In support of his application,
and for ease of reference, Kasser attached to his notice of motion, exhibit C
bearing the heading, “Compulsory Land Title Registration Accra District 0.3”.
This document spelt out the areas of Accra that formed the subject matter of
compulsory land registration. In our opinion, paragraph 2 of exhibit C
contained the answer to the submission of learned counsel for Kasser. It reads:<o:p></o:p>“As a protection against unknown and
clandestine dealings in land, all previously registered deeds in the above
areas are being replaced by Land Certificate (i.e. Certificates of Title)
similar to those which are issued to the registered holders of title in most
Commonwealth and developing countries.”<o:p></o:p>It
would be seen that deeds registered before the operative date, 10 November 1990
were not required to be submitted for re-registration. The company was under
the new law entitled to be issued with a Certificate of Title on the land it
duly registered in 1986. That land was sufficiently and clearly identified by
the site plan attached to the said lease. In our opinion, a dispute touching
upon a pre-November 1990 duly registered land is one over which the courts of
the land have jurisdiction.<o:p></o:p>The
applicant attached a lease to his application. This lease on the face of it was
duly registered in February 1992, that is to say, it was registered during the
pendency of the action before the trial court and certainly not registered
before the writ of summons issued. It is now sought to show that because the
applicant’s lease was registered after November 1990 the fact of the
registration of this other lease ousted the jurisdiction of the circuit court.<o:p></o:p>This
argument is clearly and plainly misconceived. The true position is that the
court must look at the dates on which the two rival documents were each duly
registered, and determine whether or not it had jurisdiction. When this simple
test is applied to the facts of this case it will be seen that the Circuit
Court, Accra had jurisdiction. We find that ground in support of the
application fails.<o:p></o:p>We
do not at this stage find it necessary to discuss the evidential value of the
leases put forward by each of the parties. Suffice it to state, briefly, that
we note that the lease of the company was duly registered in 1986 while that of
Kasser was duly registered in 1992. Prima facie, the trial judge was right in
holding that the lease of the company took priority over that of Kasser.<o:p></o:p>We
note in passing that the lease put in evidence by the company, apart from a
detailed description of the plot of land also had attached to it a site plan.
The lease of Kasser described the plot of land differently from that of the
company and further had no site plan attached and or annexed to it. Briefly
put, the company claimed recovery of possession of House No C260/3, Ring Road
Central, Accra. Kasser on the other hand, holds a lease that described the
property as “House No 14 Ring Road Central, Accra”. We do not propose to
undertake an in-depth consideration of the issue raised by the differences in
identification and description of the subject matter.<o:p></o:p>On
the issue of hardship, Kasser stated at paragraph 14 as follows:<o:p></o:p>“14. To the best of my knowledge and
belief great hardship will be caused to me if the judgment is carried out and I
am thrown out before my appeal is heard as my business would have suffered an
irreparable damage.”<o:p></o:p>