PAPAFIO v.

SAM
[1960] GLR 126

Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA

Date: 27TH MAY, 1960
Before: OLLENNU, J.

Local courts—Jurisdiction—Land cause—Defence relying on grant by customary law— Whether case

in such circumstances properly cognizable by local court—No jurisdiction where main claim is one
for injunction.

HEADNOTES
The plaintiff claimed a declaration of title to land, recovery of possession, damages for trespass and
perpetual injunction. At the hearing of the summons for directions, the defendant raised a preliminary
point as to the jurisdiction of the High Court to hear the action. He contended that the defence relied
on a grant of the land in his favour by customary law and the suit was therefore one properly
cognizable by a local court. (Local Courts Act, 1958 s.55). The plaintiff contended that the issue
between the parties did not depend on customary law and that mainly statute law applied.
Held:
(1) where the claim of the plaintiff in an action relating to land does not involve customary law the
fact that a defence is raised, proof of which involves customary law, does not make the case
one properly cognizable by a local court;
Obiter: where there is a counterclaim by a defendant, the determination of which depends on
customary law, the suit is not one properly cognizable by a local court unless such counterclaim
makes it necessary that the plaintiff’s claim should be determined by customary law;
(2) as the main or principal claim in the present action was one for an injunction, the local court
had no jurisdiction.
Note —The repeal of the Local Courts Act, 1958 by the Courts Act, 1960 does not affect the
principles involved in the ruling given in this case. Section 55 of the Local Courts Act, 1958 is
replaced by section 132 of the Courts Act, 1960. See also Ametameh v. Atakplai III [1960] G. L.R.
129.

[p.127] of [1960] GLR 126

CASES REFERRED TO
(1) Tackie v. Nelson and Others 12 W.A.C.A. 419;
(2) Richardson v. Eshun 6 W.A.C.A. 141.

NATURE OF PROCEEDINGS
Summons for directions, the issue being whether the High Court or the local court had jurisdiction to
hear the action.
COUNSEL
Obetsebi Lamptey for plaintiff.
Francois for defendant.

JUDGMENT OF OLLENNU J.
(His Lordship referred to the issues raised and continued):
I observe from the pleadings of both parties that they each rely upon the same root of title, namely the
Odoi Kwao family of Osu, that is to say, both parties admit or contend that the proper authority who
can validly confer right of ownership, possession and occupation of the portion of land in dispute is
the Odoi Kwao family.
Secondly in his statement of defence, the defendant admits the claim or averment of the plaintiff that a
piece of land in the area has been conveyed to him by the said Nii Odoi Kwao family. I say this
because although in paragraphs 2 and 3 the defendant pleaded that he was not in a position to admit or
deny the plaintiff’s said averment, yet in paragraph I of the statement of defence, he has pleaded a
follows: “The defendant will further aver that as far as the plaintiff’s eastern boundary is affected, the
same has been demarcated by a cement wall placed on the land of the plaintiff,” meaning that he
acknowledges plaintiff’s ownership and possession of land in the area, but contends that that land of
which the plaintiff is the owner is limited on the east by a certain cement wall. In reply to that defence
the plaintiff pleaded that the said cement wall (pleaded by the defendant) is a partition which he made
to divide the land granted to him by the said Odoi Kwao family into two portions for purposes of
separate development. This is set out in paragraph 2 of the reply as follows:—
“In reply to paragraph 1 of the statement of defence, the plaintiff says he had his pillars fixed on the
extreme corners of his land to demarcate the plot. The cement block fence was to partition the plaintiff’s
plot for purpose of development.”

It appears from these pleadings, therefore, that for the determination of the plaintiff’s claim the court
will not be bound to consider whether or not he obtained a valid grant by customary law from the
Odoi Kwao family. All that the court would be required to determine upon the pleadings as far as the
grant of the land is concerned will be whether or not the land in dispute falls within the limits of the
land granted to plaintiff by the Odoi Kwao family. The determination of that issue will not depend
upon customary law; it is purely a question of fact the determination of which depends upon
boundaries and dimensions of the land as contained in the plaintiff’s deed of conveyance and the plan
attached thereto, the determination of those boundaries on the ground, accurate measurements on the
ground and comparison of those measurements with the dimensions in the document and the plan. In
my opinion it is erroneous to argue that because the defendant puts up a plea which raises customary
law as far as his own defence is concerned, the whole case is one, the determination of which depends
upon customary law.

[p.128] of [1960] GLR 126

A plaintiff comes to court with a claim; he either succeeds or fails upon that claim. What the court has
to determine therefore is the claim; if the determination of that claim of the plaintiff does not involve
customary law, an attempt to defeat that claim of the plaintiff by a defence, the proof of which
involves customary law, will not make the claim or the issue joined between the parties, one which
must be determined by customary law. Even where the defendant counterclaims and the determination
of his counterclaim will have to be by customary law, that in itself will not make the suit one properly
cognizable by a local court unless it makes it necessary that the determination of the plaintiff’s claim
should be by customary law. This is the law as stated in proviso (d) to section 55 of the Local Courts
Act; and it is made abundantly clear by a judgment of the West African Court of Appeal in the case of
Tackie v. Nelson and Others (12 W.A.C.A. 419). In that case the plaintiff as landlord claimed arrears
of rent and recovery of possession of premises demised to the defendants. The co-defendant to whom
the defendant had been paying rents was joined as a party. In her defence she pleaded that she was the
real owner by right of succession to her mother, and that the plaintiff was not the owner, and therefore
not entitled to his claim. It was contended on behalf of the co-defendant that by reason of her defence
that the property, the subject-matter of the suit, is vested in her by customary law of succession as
against the plaintiff, the suit was one properly cognizable by a native court and that the jurisdiction of
the High Court was thereby ousted. The West African Court of Appeal held that the claim before the
court was a claim under the Rent (Control) Ordinance, 1947 and a deed of lease, and its determination
did not involve the application of customary law, and therefore it was not one which was properly
cognizable by a native court, and that the defence of the co-defendant that, as between her and the
plaintiff, she was the owner of the property by customary law, did not take the suit out of the
jurisdiction of the High Court. In this case the plaintiff’s claim is for a declaration of title, recovery of
possession, damages for trespass and perpetual injunction. What I have to consider is: what is the
main claim or main issue joined between the parties upon this writ and the pleadings? Since (as I have
already stated) the question of the plaintiff’s root of title is not in issue, the main issues left are:
(1) whether the plaintiff’s grant includes the area in dispute, and
(2) whether perpetual injunction should be grnated to restrain the defendant from continued
interference with the plaintiff in his ownership, possession and occupation of the land.
As I have already stated, the issue whether the area in dispute is included in the plaintiff’s claim
involves the measurements contained in the document which the plaintiff relies upon attached to it,
the interpretration of the document and the plan and their comparison with measurements on the
ground. That claim in my opinion is similar to the case of Richardson v. Eshun (6 W.A.C.A. 14) and
is one, the trial of which by a local court is not desirable.
As to the claim for injunction, there is no question that the local court, which is a creature of statute,
driving its jurisdiction solely from that statute, is not vested with jurisdiction to grant such an
equitable relief; and there is also no question that the claim for injunction in this case is a main claim,
desired to remedy a wrong which threatens to continue. That being so, the claim will not be one which
is properly congnizable by a local court.
Finally since both the plaintiff and the defendant rely upon the same root of title, if the evidence
should prove that the area in dispute has been granted to each of them, or forms part of the area of
land grnated to each of them by the same grantors, the question will be: which of these two grantees
has priority as far as the interest in that piece of land is concerned? The determination of that
important issue will depend upon the construction of section 21 of the Land Registry Ordinance Cap.
133. That interpretation is not one which is within the competency of a local court. In view of these
points which I have discusssed, I cannot form the opinion that this is a suit which is properly
cognizable by a local court. That being so, I cannot refuse exercise of jurisdiction which belongs to
me under section 24 of the Courts Ordinance, because although I am satisfied that there is a
competent local court established in this Region, I am not of the opinion that this suit is one properly
cognizable by a local court.
I can only exercise the powers under section 55 of the Local Courts Act as I have already said when I
form the opinion that this suit is one which is properly cognizable by a local court. I am not of the
opinion that this suit is properly cognizable by a local court. I rule that this court has jurisdiction and
the suit should be retained.

DECISION
Order that suit be retained in High Court.