Boyefio v NTHC - Contract and company law cases PDF

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[1997 - 98] GHANA LAW REPORT BOYEFIO V NTHC PROPERTIES L TD [1997-98] 1 GLR 768 - 786 SUPREME COURT, ACCRA 9 July 1997

BAMFORD-ADDO, AMPIAH, ACQUAH, A TUGUBA AND AKUFFO JJSC '" Courts-jurisdiction-Land dispute-Land Title Registration District-Types of disputes that can ari registration process under PNDCL 152-Land title adjucation committee granted exclusive jurisd determination of any dispute relating to registration of land or interest in land in registration d section 12(1) of PNDCL 152-Committee internal tribunal not subject to procedures and techni court -Appeal from final decisions of committee going to High Court- Whether dispute arisin registration exercise in declared registration district cognizable by courts-Whether section 12(1) o 152 ousting jurisdiction of courts in land suits in registration district-Land Title Re Law, 1986 (PNDCL 152), ss 12(1), 13(2), 21(2), 22, 22(3) and (4),23(6), and 33(2). Land title administration-Courts-jurisdiction-Land Title Registration District-Ouster of jurisdiction Section 12(1) of PNDCL 152 granting exclusive jurisdiction at first instance over disputes re registration of land or interest in land in registration district to land title adjudication committee-Ap final decision of committee going to High Court and then to Court of Appeal and Supreme Court jurisdiction of committee violating final judicial power of judiciary under Constitution-Constitution, 125(3)-PNDCL 152, s 139(2) and (3). Statutes-Construction-Mandatory statutory provision-Ouster clause Section 12(1) of PNDCL 152 exclusive jurisdiction at first instance over disputes relating to registration of or interest in adjudicating committee-Circumstances in which committee can be sidestepped-Whether provision with jurisdiction of judiciary -Constitution, 1992, arts 125(3) and 140( l)-PNDCL 152, s 12(1). The plaintiff brought an action at the High Court, Accra against the defendant for damages for ejectment and perpetual injunction in respect of a piece of land at Baatsonaa within the Nungua T Area. That area had been declared a registration district by the Land Title Registration-Decl Registration District (Accra District 02) Instrument, 1992 (LI 1536) under the Land Title Registra 1986 (PNDCL 152). The defendant then applied to the High Court to dismiss the action on the gr since LI 1536 had declared the area a registration district, section 12( 1) of PNDCL 152 operated t jurisdiction of the court. The plaintiff however resisted the [pg 768 ] application the ground that und 125(3) and 140(1) of the Constitution, 1992 the High Court had jurisdiction over the matter. The

Court judge then stayed the proceedings and in accordance with article 130(2) of the Constitut referred to the Supreme Court for determination the question: "Whether having regard to the pro articles 125(3) and 140(1) of the Constitution, 1992, section 12(1) of PNDCL 152 can operate to jurisdiction of the High Court in land matters arising within areas which have been declared re districts under the said Law." Held, (I) the disputes which could arise relative to land or an interest in land under the L Registration Law, 1986 (PNDCL 152) and in respect of which section 12(1) provided that no acti be commenced in any court until the procedures to settling such disputes under PNDCL 152 exhausted were disputes relating to (i) conflicting as provided under section 23(6) of PNDCL conflicting Land Registry Act, 1962 (Act 122) registered instrument as provided under section 13(2 registrar refusal to register an applicant as provided under section 21(2); and (iv) the accuracy and of land on the registry maps and plans as provided under section 37(2). Under those provi specified disputes were in the first instance referred to the adjudication committee set up under sec PNDCL 152. However, under section 22(3) and (4) of PNDCL 152, the jurisdiction of the ad committee was limited to the determination of any dispute relating to the registration of land or i land in any registration district. The adjudication committee was therefore a purely internal or tribunal and not one with general jurisdiction to handle any land suit in a registration district. I subject to the procedures and technicalities of the court and it was only where there was an app High Court from a final decision of the committee that section 33(2) of PNDCL 5 12 mandated the to enter the contents of the adjudicating record in the land register and other records of the regis therefore clear from the prescribed jurisdiction, procedure and effect of the decision of the ad committee that it was not intended to assume the jurisdiction of the courts in land suits in a re district. Accordingly, the ban on taking actions in the courts imposed in section 12(1) of PNDCL restricted solely to actions relating to disputes arising in the courts of the Land Title Registry's ex registering such titles to land and interest therein. Accordingly, if a dispute arose outside the re exercise of the registry then, notwithstanding that the area had been declared a registration district was the proper forum for its determination. In the result, section 12(1) of PNDCL 152 did not jurisdiction of any court, let alone the High Court, in land suits in a registration district. Dictum of A in Kasser v Raziel Construction Ltd [1993-94] I GLR 332 at 340, SC cited. Amar v Mireku, Court of December 1993, unreported and Paul v IGIC Ltd, High Court, Accra, 14 July 1995 unreported ove 770 ] (2) Since the land title adjudication committee was an internal administrative tribunal of the L Registry solely concerned with determining disputes arising in the course of th6 registry's funct section 13(2) and (3) of PNDCL 152 had provided for appeals from any decision of the ad committee to the High Court, then thereafter a further right of appeal to the Court of Appeal, and the Supreme Court, the power exercised by the adjudication committee did not violate articles 1 140(1) of the Constitution, 1992 which had vested exclusive final judicial power in the judiciary an the High Court jurisdiction in all cases. (3) The law was clear that where an enactment had prescribed a special procedure by which some to be done, it was that procedure alone that was to be followed. Furthermore, section 12(1) of PN was in consonance with the modem practice of setting up an internal tribunal in an institution to det first instance disputes arising within that institution before recourse was made to the courts if the m not end at the internal tribunal. In such situations, where a person ignored the internal tribunal and court in respect of any such internal dispute, unless that person had a substantial reason for side the internal tribunal, the courts would invariably order him to go back to the internal tribunal. Ac section 12(1) PNDCL 152 was consistent with articles 125(3) and 140(1) of the Co

1992. Tularley v Abaidoo [1962] GLR 411, SC cited. Cases referred to (1) Takoradi Flour Mills v Parry, High Court, Sekondi, 30 March 1992, unreported. (2) Vanderpuye v Obey, High Court, Accra, 21 October 1993, unreported. (3) Amar v Mereku, Court of Appeal, Accra, 9 December 1993, unreported (4) Nicheren Shoshu, Sokagakkai of Ghana v Ghanatta [1993-94] 1 GLR 316, CA. (5) Kasser v Raziel Construction Ltd [1993-94] 1 GLR 241, CA. (6) Kasser v Raziel Construction Ltd [1993-94] 1 GLR 332, Sc. (7) Paul v IGIC, High Court, Accra, 14 July 1995, unreported. (8) Canada Sugar Refinery Co v R [1898] AC 735. (9) Akainyah v The Republic [1968] GLR 548 Tularley v Abaidoo [1962] 1 GLR 411, Sc. [pg 771 ] REFERENCE by the High Court, Accra to the Supreme Court for dete under article 130(2) of the Constitution, 1992 of the question: "Whether or not having rega provisions of articles 125(3) and 140( 1) of the Constitution, 1992, section 12(1) of the L Registration Law, 1986 (PNDCL 152) has ousted the jurisdiction of the High Court in land matte within areas which have been declared as registration districts· under PNDCL 152." The facts are sufficiently stated in the judgment of Acquah JSc. E D Kom (with him Charles Hayibor and Ansah) for the plaintiff. Zwennes for the defendant. Acquah JSC. Section 12(1) of the Land Title Registration Law, 1986 (PNDCL 152) has received su and, indeed, conflicting interpretations from the lower courts as to make one wonder whether t from any flaw in the drafting of that section. Now, the object of PNDCL 152 as the memorandum to it shows, is to provide a machiner registration of title to land and interests in land. The starting point in the registration exerci declaration by the Minister of Lands, in a legislative instrument, that a specified area is a registratio Thereafter the processes for registration are set in motion by the Land Title Registry. Now, when a declared a registration district by a legislative instrument, section 12(1) of PNDCL 152 forbids the of any court action concerning any land or interest therein in a registration district until the proce settling disputes under the law are exhausted. The problem has been the determination of the true this section 12(1 of PNDCL 152. Does it oust the court's jurisdiction in land suits in a registration dis In the instant case, the plaintiff issued a writ accompanied by a statement of claim at the High Co

for damages for trespass, ejectment and perpetual injunction in respect of a land situate at Baatson the Nungua Traditional Area. That area has indeed been declared a registration district by the Registration-Declaration of Registration District (Accra District [pg 772 ] Instrument, 1992 (Ll 15 July 1992. The defendant entered appearance and moved the court to dismiss the action on the that with the declaration of the area as a registration district by Ll 1536, section 12(1) of PN operates to oust the jurisdiction of the High Court. The plaintiff relying on article 140(1) and 125 Constitution, 1992 resisted the application. The trial High Court judge (Gbadegbe J) in accord article 130(2) of the Constitution, 1992 posed the following question to this court: "Whether having regard to the provisions of article 125(3) and 140(1) of the Constitution, 1992, sec of PNDCL 152 can operate to oust the jurisdiction of the High Court in land matters arising wit which have been declared registration districts under the said Law?" Article 125(3) of the Constitution, 1992 vests the judicial power ·of the State in the judiciary, wh 140(1) grants jurisdiction in all civil and criminal matters, subject to the provisions of the Constitut to the High Court. Thus if section 12(1) of PNDCL 152 is understood to oust the High Courts juris land matters, then this will be inconsistent with the above provisions of the Constitution, 1992. Wh the import of section 12(1) of PNDCL 152? In Takoradi Flour Mills Ltd v Parry, High Court, 30 March 1992, unreported, it was held that sectio PNDCL 152 is only applicable to disputes affecting unregistered lands. Then in Vanderpuye v O Court, 21 October 1993, unreported, it was also held that section 12(1) is limited to the registratio title or interest in land, and not to the declaration of title to land. The Court of Appeal in two cases the High Court, and for that matter any court, has no jurisdiction to deal with any claim involving d of title to land or interest in land in a registration district having regard to section 12(1) of PNDCL cases are: Amar v Mireku, Court of Appeal, Accra, 9 December 1993 and Boakye v Trustees of Shoshu Sokaggakai of Ghana [1993-94] 1 GLR 316, CA. In the latter case, the Court of Appeal bound by its decision in the Amar case (supra) and thereby followed it. The subject-matter of the 773 ] [1997-98] 1 GLR Boyefio v NTHC (Acquah JSC) 773 case (supra) was house No C345/4 of Sackitey Sackey who died intestate on 5 August 1962. The customary successor of Ruth Sackite was alleged to have sold this house to the defendant without the consent of the family. The a therefore for a declaration that on the death intestate of Ruth Sackitey Sackey, the house became property and that the sale by the successor without the consent of the family, was null and defendant pleaded that the sale was proper and counterclaimed for title to the house and injunction to restrain the plaintiffs. The Court of Appeal held that the defendant's counterclaim for t house was ousted by section 12(1) of PNDCL 152. Then in another case, Kasser v Raziel Co Ltd [1993-94] 1 GLR 241, CA, in which the lease in issue was registered under the Land Registr 1962 (Act 122) before the area was declared a registration district, the Court of Appeal held th dispute touching upon a pre-declaration of registration area, is one over which the courts have ju The holding seems to imply that if it had fallen within the declaration period, the courts would hav jurisdiction. An appeal against the Court of Appeal's decision in the above case was dismiss Supreme Court by a majority of four to one: see Kasser v Raziel Construction Ltd [1993-94] 1 GLR Aikins JSC who wrote the leading majority opinion pointed out that it is misconception to hold declaration of a registration district, the adjudication committee of the Land Title Registry auto assumes jurisdiction in claims of proprietors of land or interests in land. Having regard to the issues that appeal, the scope of section 12(1) was of PNDCL 152 was not really examined. Indeed, Fran who dissented took the view that 12( 1) of PNDCL 152 was irrelevant to the resolution of the appea In 1995 Asare Korang J in Paul v IGTC Ltd, High Court, Accra, 14 July 1995, unreported, examine

Court of Appeal decisions mentioned earlier on, and noted that the Court of Appeal in those case advert their minds to the provision of the Constitution, 1992 to determine whether section 12( 1) o 152 could co-exist with the constitutional provisions. He held that article 140(1) of the Constitution, section 15(1)(a) of the Courts Act, 1993 (Act 459) impliedly repealed [pg 774 ]section 12(1) of PN He further held that in so far as the Court of Appeal failed to acdvert its mind to the constitutional p the said decisions of the Court of Appeal were given per incuriam He then concluded by holding th 12(1) of PNDCL 152 is inconsistent with article 140(1) of the Constitution, 1992 and consequentl void. It is evident from the line of reasoning of Asare Korang J in the Paul case (supra) that he took the section 12(1) of PNDCL 152 does oust the jurisdiction of the courts in land suits. Is his lordship with what jurisdiction did he sit at the High Court to declare a provision of an enactment, inconsi the Constitution, 1992? Now, a safe and better approach to the interpretation of any provision of an enactment is to exa enactment as a whole so as to render that interpretation consistent with the remaining provisio enactment. Thus Lord Davey in Canada Sugar Refining Co v R [1898] AC 735 at 741 said: "Every clause of a statue should be construed with reference to the context and other clauses of th as, as far as possible, to make a consistent enactment of the whole statute or series relating to the matter." Accordingly, a more fruitful approach to' the discovery of the meaning and scope of section 12(1) o 152 must begin with a careful analysis of the section vis-a-vis the remaining provisions of the Law 12(1) of PNDCL 152 reads: "12. (1) No action concerning any land or interest therein in a registration district shall be commenc court until the procedures for settling disputes under this Law have been exhausted." (The emphasis is mine.) The drafting of the above provision is certainly misleading as it does not the necessary emphasis and prominence of the key expressions therein. A recasting of it will theref "Until the procedures for settling disputes under this Law have been exhausted, no action conce land or [pg 775 ] interest therein in a registration district shall be commenced in any court." Such a recasting singles out the key elements in the section as "disputes under this Law" '~rocedures" for settling such disputes. What then are disputes under this Law, and what are the pr for settling them? (a) What are the disputes under PNDCL 152? As stated earlier on, the first step in the process.. of registration under the Law is the declara registration district by the Minister of Lands. Within fourteen days of such a declaration, sect PNDCL 152 enjoins the Chief Lands Registrar by notice, to specify the extent of the registration d invite claimants for title to land or interest therein to put in their claims and demarcate the boundari land in the manner specified in the notice. The Land Registry then checks the description of the land and investigates the title offered by each to ascertain whether the claimant has shown a prima facie right to have the land registered in his

proprietor. When satisfied, the notice of the application is then published and adverse claims if a applicant's title are invited. Section 23(6) of PNDCL 152 provides: "(6) Where there are two or more claimants of any interest in land situated in a registration distric Land Registrar is unable to effect agreement among the claimants(a) if the matter is within the jurisdiction of the Stool Lands Boundaries Settlement Commission, Registrar shall refer it to the Commission and the matter shall be heard as if it had been so referre of the parties; and, (b) all other matters shall be referred by the Land Registrar to the Adjudicating Committee for adjud Next, section 13 of PNDCL 152 provides for the registration of land or interest in land in respect instruments have [pg 776 ] been registered under the Land Registry Act, 1962 (Act 122). The s PNDCL 152 is that after the declaration of a registration district, the Land Registrar: is to prepare a lands situated in that district in respect of which an instrument had been registered under Act thereafter serve on an~ person named as a proprietor of land or interest in land in the list so pr notice of his intention to register such person as proprietor of the land or interest. Where the conflicting instruments or claims in respect of a land, the Land Registrar will, after the expiry of the his intention to register, register the uncontested candidate in the land register. But as provided 13(2) of PNDCL 152: "(2) Where there are conflicting claims in respect of any land referred to in subsection (1) of this s matter shall be referred to the Adjudication Committee established under section 22 of this Law." Then section 20 of PNDCL 152 empowers the Land Registrar to reject an application for first regi any land or an interest in land on certain specified grounds. For example, he may reject an a based on an instrument which is inconsistent with a prior instrument or if the instrument interlineations, blank, erasure or alteration not verified by the signature or initials of the person exe instrument. There is, however, an obligation on the Land Registrar under section 21 of PNDCL . 152 to notify each applicant Of his grounds for rejecting an application and if the objection section 20(1)(d) of PNDCL 152, to give the applicant 30 days within which to make further repres In respect of objections under section 20(1)(a) or (b), section 21(2) of PNDCL 152 provides: "(2) Where the Land Registrar is of the opinion that an application should be rejected on the paragraph (a) or (b) of subsection (1) of section 20 of this Law, he shall notify the applicant of h and shall refer the matter to the Adjudication Committee." (The emphasis is mine.) [pg 777 ] Finally, section 34 to 52 of PNDCL 152 provide for the preparation of regi to be maintained at the Land Title Registry. Section 37(1) of PNDCL 152 then presumes that the and plans filed in the registry indicate the approximate boundaries and situations of any parc shown thereon. However, as provided in section 37(2) of PNDCL 152: "(2) Where any uncertainty or dispute arises as to the position of any boundary, the Adjudication C

on the application of any interested person, shall, on such evidence as it considers relevant, deter indicate the position of the boundary; except that in the case of a dispute' within the jurisdiction of Lands Boundaries Settlement Commission, the Adjudication Committee shall refer the matt Commission and the matter shall be heard as if it had been so referred by any of the perso boundaries are in question." The ...