NSIAH v. ASARE & ORS [1959] GLR 17-21
IN THE HIGH COURT (LANDS DIVISION), ACCRA.
17TH JANUARY, 1959.
OLLENNU J.
Public Lands Ordinance—Compensation for compulsory acquisition—Rival claimants to
compensation—No jurisdiction in Native Court—Exclusive jurisdiction in Land Court—
Commissioner of Lands' exclusive power to refer rival claims to Court.
HEADNOTES
Some time in 1954, the Minister responsible for lands published notice, under section 5
of the Public Lands Ordinance, of the Government's proposal to acquire three groups of
land, enumerated group "A' group "B" and group "C" respectively. The plot of land
numbered group "B" was land at Dodowa required for a Public Works Department yard,
and for offices of the Veterinary Department. Copies of the notice were served as
required by section 6 of the Ordinance.
By letter dated the 5th November, 1954, addressed to the Commissioner of Lands,
Adarkwa Asare put in a claim for compensation in respect of each of the three plots of
land. On the 6th November, 1954, (i.e. the day after Asare had put in his claim) Nsiah
also wrote to the Commissioner claiming compensation, apparently in respect of the
land in group "B".
Some correspondence passed between the Commissioner of Lands and each of the
parties. Later, the Commissioner of Lands obtained Certificate of Title from the
Supreme Court under section 12 of the Ordinance. The correspondence disclosed that
some attempts were made by the Commissioner at settlement with the two claimants of
the amount of compensation payable for the land acquired.
Eventually, the Commissioner of Lands wrote to Nsiah as follows:
"I have been expecting to hear from you following your meeting with Mr. Adarkwa
Asare, c/o Methodist Mission, Dodowa. He was prepared to see you to discuss your
claims, and I shall be obliged by your writing me as soon as you have discussed the
matter."
Nsiah, upon receipt of this letter, took exception to the claim made by Asare for
compensation, and sued him for damages "for interfering with the plaintiff's land."
The Shai Native Court "B" gave judgment for Nsiah. The unsuccessful Asare appealed
to the Land Court. The appeal came before Lingley J., who upheld a preliminary
objection taken by Counsel for Nsiah, and ruled that the suit was not one relating to
ownership, possession and occupation of land, and that the land Court had, therefore,
no jurisdiction to entertain it. He accordingly referred the appeal to the Magistrate's
Court, constituted by the Government Agent, Accra, which appeared to him to be the
Court that had jurisdiction in the matter.
Nsiah appealed from Lingley J's. ruling to the Court of Appeal, which allowed the appeal
and gave judgment in the following terms:
"In our view the learned Judge of the Land Court misconceived the claim, which is
clearly a claim relating to ownership, possession and occupation [p.18] of land. This
appeal is accordingly allowed, the judgment of the Court below is set aside, and the
appeal is remitted to the Land Court for hearing."
Accordingly, the appeal again went before the Land Court (Land Appeal 130/1955).
Held:
(1) the citizen's general legal right to assert what he believes to be his title has been
supplemented by a statutory right (conferred by the Lands Ordinance) to submit claims
for compensation on a compulsory acquisition. It is, therefore, not an actionable wrong
to claim compensation, though another has submitted a similar claim. The plaintiff's writ,
accordingly, disclosed no cause of action;
(2) notwithstanding the misconceived wording of plaintiff's writ, his real claim was for a
declaration that, as between him and the defendants he was the person entitled to
compensation;
(3) the provisions of section 8(4) of the Public Lands Ordinance by implication exclude
the jurisdiction of Native Courts to hear and determine claims made under section 8;
(4) a similar inference is to be drawn from the reference to "rules of Court" in Section
8(7);
(5) the only Court which has jurisdiction in virtue of section 8(1) of the Public Lands
Ordinance is the Lands Division of the Supreme Court. The Native Court was,
therefore, without jurisdiction;
(6) the effect of section 8(2) of the Public Lands Ordinance is to vest in the
Commissioner of Lands the right to institute proceedings for determination by the Court
of rival claims to compensation, to the exclusion of such institution by the claimants
themselves. The plaintiff's proceedings therefore, were ultra vires.
COUNSEL
Dadzie (for Akufo-Addo) for appellants (Asare & ors.)
Amorin for respondent (Nsiah).
JUDGMENT OF OLLENNU J.
(His lordship stated the facts and history of the case, and proceeded;-)
Apart from the general legal right which any citizen has to assert his title to any land
which he bona fide believes to be his property, there is a statutory right, given by the
Public Lands Ordinance to anyone who claims to be entitled to compensation for land
acquired for public purposes, to submit his claim to the Commissioner of Lands within
three months of the service and publication of the notice of acquisition. This right is
conferred by sections 6 and 7 of the Ordinance. It is not an actionable wrong in any
person, therefore, that he should make a claim for compensation when another person
who also claims to be entitled to compensation in respect of the same acquisition, also
submits his claim as required by the Ordinance.
[p.19]
Indeed, section 8 of the Ordinance (with which I shall deal presently) anticipates that
there may be more than one claimant, and makes provision for dealing with such a
situation. Therefore, the plaintiff's writ disclosed no cause of action.
As has been often held, however, by this and higher Courts, in dealing with claims from
Native Courts a Court must look at the whole proceedings to ascertain the real matter in
dispute between the parties, and should not confine itself strictly to the writ filed in the
Native Court. Upon examination of the writ of summons and the whole of the
proceedings, what emerges as the plaintiff's real claim is one for a declaration that, as
between him and the defendants, he is the person entitled to the compensation for the
land acquired.
Learned Counsel for the appellants submitted that the proceedings before the Native
Court in this suit, and the judgment therein, are null and void, as being without
jurisdiction. I agree with that submission.
The Public Lands Ordinance provides that compensation should be paid to the owner in
possession of the land at the date of its acquisition. Section 8 of the Ordinance vests
jurisdiction to determine the amount of compensation, and the party or parties who,
among rival claimants, is or are entitled to compensation, in a special type of Court,
namely, "any of Her Majesty's Courts having jurisdiction to determine as to the
ownership of such lands." What "Her Majesty's Courts are, is defined in the courts
ordinance, and in the various Native Courts Ordinances. Native Courts are also defined
in each of the said Ordinances. In my opinion, the term "Court," when used in any
Ordinance without qualification, is as defined in the Courts Ordinance, and does not
include a Native Court.
Section 24 of the Courts Ordinance created a division of Her Majesty's High Court
known as the Lands Division, namely this Court, and empowered it to "exercise within
Ghana jurisdiction in all causes and matters relating to the ownership, possession, or
occupation of land, specifically assigned to the Lands Division by this or any other
Ordinance.
The Public Lands Ordinance one such "other Ordinance," and section 8(4) thereof
provide as follows:
"The evidence as to ownership of lands may be such as in proceedings before the
assessor to the native chiefs would be admissible and relevant evidence as to such
ownership."
This sub-section appeared in the original Public Lands Ordinance when it was passed in
1876. At that time, Native Courts had not [p.20] been given statutory recognition.
Justice between natives was administered by the chiefs and the councillors, usually
called "assessors to the chief," and the first enactment which gave statutory recognition
to the Native Court then in existence was the Native Jurisdiction Ordinance, passed in
1883, i.e. subsequently to the Public Lands Ordinance of 1876. The provisions of
section 8(4) of the Public Lands Ordinance imply that "Her Majesty's Courts" (in which
jurisdiction under the Ordinance is vested) are not Courts in which the sort of evidence
mentioned in that sub-section is normally admissible. The interpretation, therefore,
which I place upon Section 8(4) is that the expression "any of Her Majesty's Courts,"
mentioned in Section 8(1), does not include a Court of "the assessor to the native
chiefs," i.e. a Native Court.
Further, Section 8(7) lays it down that appeals from the decision of the Court should
proceed according to the rules of Court. The "rules of Court," of course, referred to are
those of the Supreme Court.
In my opinion, therefore, the only Court which has jurisdiction in virtue of Section 8(1) of
the Public Lands Ordinance, is the Lands Division of the Supreme Court. The Native
Court, accordingly, had no jurisdiction to determine the real matter in dispute as
disclosed on the writ and the proceedings, namely: Who, as between the plaintiff and
1st defendant, is the person entitled to compensation for the land acquired?
Section 8(2) of the Public Lands Ordinance provides as follows:
"Notice in writing signed by the Commissioner of Lands or an Assistant Commissioner
of Lands shall be served upon every person who may have claimed any interest in
respect of such lands not less than seven days before the time appointed for hearing
and determining such claims, calling upon such persons to come in and prove their
claims to the lands or the interest therein to which they may consider themselves
entitled ...."etc.
Upon the issue of the Certificate of Title, the land becomes vested in and held by the
Government in the manner provided in Section 2 of the Ordinance, and the only thing
left to the owner in possession at the date of the acquisition is the right to
compensation. Section 8(2) provides that proceedings for the determination by the
Court of rival claims and of the amount of compensation for land acquired under the
Ordinance shall be instituted by, and only by, the Commissioner of Lands. That being
so, the institution of the present action by the plaintiff, instead of by the Commissioner of
Lands, was ultra vires the plaintiff, and there was no jurisdiction in the Native Court to
entertain the suit.
[p.21]
DECISION
I must therefore allow the appeal. It is allowed accordingly, and the proceedings before
the Native Court, their judgment therein, and their orders as to costs, are declared null
and void, and of no effect. Any costs already paid are to be refunded. The appellants
will have their costs in this Court, fixed at £16 18s. Od., including Counsel's costs of 10
guineas; and their costs in the Native Court, to be taxed
ACQUISITION OF LAND - Compensation - Rival claimant -