GHANATTA AND OTHERS vs. BOARD OF TRUSTEES OF NICHEREN SHOSHU SOKA GAKKAI [1993]DLCA5042

Date	1993-05-13
Suit No.	[1992 – 1993] 4 G B R 1532 - 1535 C.A
Citation No.	[1993]DLCA5042

ESSIEM JA

ADJABENG JA

LUTTERODT JA

[1993]DLCA5042
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													<main id="main" class="content" style="min-height: 60rem" >GHANATTA AND OTHERS<o:p></o:p>vs.<o:p></o:p>BOARD OF TRUSTEES OF
NICHEREN SHOSHU SOKA GAKKAI<o:p></o:p>[COURT
OF APPEAL]<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] 4 G B R 1532 - 1535
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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 13 MAY 1993<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">

ESSIEM
JA, ADJABENG JA, LUTTERODT JA<o:p></o:p>

</div>ESSIEM JA. <o:p></o:p>This
is an application by the 1st defendant-appellant “for a stay of execution of
the judgment in default of defence herein pending the hearing and determination
of either or both interlocutory appeals herein filed on 22 December 1992 and 11
February 1993 respectively.” The claim before the court was for:<o:p></o:p>“(1) A declaration of title to plots
Nos 86 and 87, Amisa Gon, Dansoman, Accra, with all the buildings thereon, on
which the Kaikan (centre for worship) of the plaintiff is situated.<o:p></o:p>(2) Recovery of possession of the
disputed property.<o:p></o:p>(3) Recall and cancellation of any
document affecting the land, prepared by the 2nd defendant purporting to vest
the property in the 1st defendant or any other person.<o:p></o:p>(4) An order of perpetual injunction
restraining the 1st defendant his agents, servants, workmen or assigns or any
associations or bodies formed by him from in any way interfering with the
property in dispute.”<o:p></o:p>Although
the 1st defendant entered appearance, he failed or neglected to file a
statement of defence. The plaintiff therefore applied to the court below for
judgment in default of defence and same was granted. The applicant then brought
an appeal to this court on the ground that the court below had no jurisdiction
to deal with the matter because the jurisdiction of the court in land matters
had been taken away by section 12 of the Land Title Registration Law 1986
(PNDCL 152). That section of the Law provides:<o:p></o:p>“12(1) No action concerning any land
or interest therein in a registration district shall be commenced in any court
until the procedures for settling disputes under the Law have been exhausted.<o:p></o:p>(2) Where at the time of the
publication of a notice under section 11 of this Law, an action or proceeding
concerning any land or interest therein in a registration district referred to
in the notice is pending in any court, any claim under law in respect of the
same land or interest shall be noted by the Land Registrar but no further
action shall be taken by him on such claim until the matter is determined by
the court.”<o:p></o:p>Whether
or not the court below has jurisdiction to deal with the case now on appeal is
yet to be determined by the Court of Appeal. The appellant-applicant does not
deny that he has defaulted in filing his defence to the action. By paragraph 11
of the defendant-applicant’s affidavit he deposes that the appeal will deal
with:<o:p></o:p>(a)
the jurisdiction of the court below to entertain the plaintiff’s suit;<o:p></o:p>(b)
the issue whether he had been properly sued; and<o:p></o:p>(c)
whether the plaintiffs had title and hence locus standi.<o:p></o:p>In
my humble opinion, these are matters which can be raised in a statement of
defence and which would give the court below the chance to pronounce on the
issues one way or the other. Order 21 rule 6 of the High Court (Civil Procedure)
Rules (LN 140A) provides:<o:p></o:p>“6. Where a defendant has entered an
appearance, he shall deliver his defence within fourteen days from time limited
for appearance or from the delivery of the statement of claim, whichever shall
be later, unless such time is extended by consent in writing or by the Court or
Judge¼”<o:p></o:p>Then
Order 25 rules 2 and 3 provide:<o:p></o:p>(2)
Any party shall be entitled to raise by his pleadings any point of law, and any
points so raised shall be disposed of by the Judge who tries the cause at or
after the trial, provided that by consent of the parties, or by order of the
Court or a Judge on the application of either party, the same may be set down
for hearing and disposed of at any time before the trial.<o:p></o:p>(3)
If, in the opinion of the Court or a Judge, the decision of such point of law
substantially disposes of the whole action, or of any distinct cause of action,
ground of defence, set-off, counter-claim, or reply therein, the Court or Judge
may thereupon dismiss the action or make such other order therein as may be
just.”<o:p></o:p>Order
52 rule 1 also provides:<o:p></o:p>“Where by these rules any application
is authorised to be made to the Court or a Judge, such application if made to a
Judge in Court, shall be made by motion.”<o:p></o:p>There
is no evidence before this court that the applicant either raised in his
pleadings the issue of jurisdiction or applied by motion to the court to
challenge the jurisdiction of the court below. The court below was thus denied
the opportunity to pronounce on the issue of jurisdiction in compliance with
the rules of court.<o:p></o:p>At
least in my opinion the issue of jurisdiction will be the central issue in the
appeal now pending before the court. Although the defendant did not file a
defence was the court right in giving judgment in default of defence, although
the alleged want of jurisdiction was brought to its notice?<o:p></o:p>